Fired Employee Failed To Prove That Depression, Harassment Drove Him To Fight: Court


An employee who was fired for fighting after being harassed, did not prove that his harassment or depression caused him to fight. Therefore, the Human Rights Tribunal of Ontario was wrong to find that his firing was discriminatory, the Ontario Divisional Court has ruled.

The employee, Lombardi, had been diagnosed with hypothyroidism and depression.  He had suffered verbal abuse from a co-worker who also sent text messages with homophobic slurs.  Later, Lombardi got into a fist fight with another co-worker.  The employer fired Lombardi, concluding that he had started the fight.  Lombardi filed a discrimination application with the Human Rights Tribunal of Ontario.  He claimed that the fight was at least in part a reaction to being harassed because of depression, perceived obesity and perceived homosexuality.  The Tribunal agreed.  The employer challenged the decision in court.

The court decided that the Tribunal had made only a “bald statement that the fight was at least in part a reaction to the harassment.”  Lombardi had the onus of proving a link between the harassment or discrimination and the fight, but he had failed to prove the link.  The court stated,

“Given the evidence as to Mr. Lombardi’s responsibility for starting the fight, the lack of any explanation to the Employer about the impact of the harassment, the lack of any medical evidence relating to mental distress and given the seriousness of the misconduct, the conclusion that the dismissal was discriminatory was unreasonable, as the adjudicator failed to show why she reached that conclusion.”

The court sent the matter back to the Tribunal for a new hearing on whether the dismissal was discriminatory, as well as whether the $20,000 damage award for harassment was appropriate.

This is an interesting and nuanced decision showing that the fact that an employee is harassed does not automatically justify or explain a violent response by the employee.  Instead, the employee must prove, through medical and/or other evidence, that his or her response resulted from the harassment.

Walton Enterprises v. Lombardi, 2013 ONSC 4218 (CanLII)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.