Guest Speakers
- Irène Bujara, former University Advisor on Equity and Human Rights
- Barb Lotan, Sexual Violence Prevention and Response Coordinator
This meeting centered broadly on case law with respect to sexual harassment/violence in the workplace, drawing upon criminal, civil, and human rights case law, as well as labour arbitration.
Criminal Cases
Summary
The following case was a criminal case before the Ontario Superior Court of Justice. The accused J.P. is change with five counts of sexual assault against give separate complainants. The offences are alleged to have taken place in the workplace of J.P. and each of the five complainants, Sunnyside Home, a long-term care facility owned and operated by the Regional Municipality of Waterloo in the City of Kitchener.
Basic Principles to be observed in this case relate to reasonable doubt, defined as “the existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt”.
The alleged sexual assault occurred between August 2011 and November 2014 and involved five separate individuals.
Therefore, the Justice states that:
The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown’s evidence, as such as approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt.
The term “sexual assault” is not defined in the Criminal Code, however, in the seminal case of R. v. Chase [1987], the Supreme Court of Canada stated that sexual assault is an assault, within any one of the definitions of that concept in what is now s. 265(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.
Noted was that consent is often a central focus in cases of sexual assault, however, in this case consent is not a focus, because J.P. asserts that the incidents for which he has been brought up on charges for, did not occur.
Questions to be Determined and Findings
All of the questions within this section are the same, the Justice is weighing whether there is reasonable doubt to the claim of sexual assault by J.P. against each of the complainant.
- In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant T.B.? (YES)
- In count two, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant H.S.? (YES)
- In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant L.H.? (NO)
- In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant L.B.? (YES)
- In count one, is the court satisfied beyond a reasonable doubt that J.P. sexually assaulted the complainant K.S.? (NO)
Analysis
In count one with respect to complainant T.B., the Crown points to six incidents reported by the complainant as constituting sexual assault:
- Tugging on T.B.’s top to light it up to look at her stomach;
- Tugging on T.B.’s shirt to look at her tattoo above her left breast;
- Pulling up T.B.’s shirt and tugging on her pants to see what kind of underwear she was wearing;
- Pushing up against T.B. in a resident’s bathroom, on more than one occasion and holding her hips;
- Untying the strap ties on T.B.’s scrub top, typing her hands behind her back and pushing himself against her; and
- Grabbing T.B.’s breasts and buttocks over her uniform during a power outage.
The Crown proved beyond a reasonable doubt that the incidents took place. T.B. did not waiver on cross examination and the defense presented no reason why T.B. would fabricate the complainant against J.P., noting that they worked together infrequently. Noting that although there was discrepancies in the account to police and that presented at trial in terms of the frequency, it was noted that this related only to detail and did not undermine the core of the evidence.
Furthermore, when T.B. first began working with J.P. he created a sexualized environment due to comments of a sexual nature, this provided context for the sexual aspects of the touching and constitutes sexual assault under the Criminal Code.
In count two with respect to complainant H.S., the Crown points to three alleged incidents reported by the complainant as constituting sexual assault:
- Pulling H.S.’s scrub top to the side over her shoulder to observe her tan line;
- Pulling up H.S.’s scrub top from behind and commenting that he was trying to see whether her pants were see-through; and
- Kissing her on the top of her head after she gave him cookies and coffee.
J.P. admitted to kissing H.S. on the head after he leaned in to dispose of his cookie wrapper but denies the other incidents of touching.
As with T.B., H.S. did not waiver and there was no evidence to suggest that H.S., who considered J.P. a friend would fabricate such allegations. Further it was found that upon cross-examination, J.P. did admit to pulling on the complainant’s top.
In regards to the first alleged incident, it was stated that it was inappropriate within the workplace, but because it did not rise to the level of being visible to a reasonable observer as sexual assault, it was note that the Justice was left with reasonable doubt that it rose to the level of criminal sexual assault.
The second alleged incident does constitute a sexual assault under the criminal code and is the only incident that a count of guilty is found.
In count three with respect to complainant L.H., the Crown states that the incident being brought forward is an allegation that J.P. placed his hands on her hips and pressed his body against hers. The court found that this incident did occur, but that it did not violate L.H.’s sexual integrity because as described, it was brief, he did not move his hands and it was his upper body torso and not his lower body that pressed against L.H. Noting, that the incident may have caused discomfort for L.H. but does not rise to the level of criminal sexual assault.
In count four with respect to complainant L.B., the Crown presented two alleged incidents by the complainant as constituting sexual assault:
- J.P. pressing his genitalia area against her, and
- J.P. grabbing her buttocks.
L.B. stated that these both occurred on the same shift. The evidence presented by L.B. was consistent and did not waiver in cross-examination. As L.B. and J.P. rarely worked towards and hardly knew one another the court concluded that there was no reason L.B. would make such accusations without cause. The first incident cannot be proved within a reasonable doubt, as L.B. said that she was not fully aware whether he did it or not. The second however the Crown did prove beyond a reasonable doubt that it occurred and that it did violate L.B.’s sexual integrity and therefore constitutes a sexual assault.
In count five with respect to complainant K.S. the Crown points to two alleged incidents reported by the complainant as constituting sexual assault:
- Forced penetration, and
- Having masturbated in front of K.S.
With respect to these two instances, J.P.’s testimony was straightforward and non-evasive and his evidence that both of the incidents did not occur was not undermined on cross-examination. Given the other testimonies, the place of employment was a busy and hectic environment and that it did not appear there would be a time for the two incidents to occur without another employee or resident witnessing the incident. Due to inconsistencies in K.S.’s police report and testimony, the court was left with reasonable doubt as to the guilt of J.P. and therefore there was a finding of not guilty.
Outcome
The Justice cited, “for the foregoing reasons I find the accused guilty of sexual assault in reference to counts one, two, and four of the indictment and not guilty in reference to counts three and five of the indictment.”
Civil Cases
Summary
This case is a labour arbitration between the City of Burlington and CUPE Local 2723, who is representing the grievor, Susan Catherwood.
The Corporation of the City of Burlington has a ‘zero tolerance’ policy in place for sexual harassment in the workplace.
The allegations that were brought forward in 2015 and 2016 which gave rise to a workplace investigation, pursuant to the City of Burlington’s Respect in the Workplace Policy, and precipitated Susan Catherwood being terminated from her job are as follows:
- Ms. Catherwood was dancing, in a sexually suggestive manner, in front of Mr. Alfaro;
- Ms. Catherwood ran her index finger along the shaved head of Mr. Alfaro from front to back, licking her finger and replying “yummy” afterward; and
- Ms. Catherwood using the word “erection” and making a hand gesture indicating an erect penis.
At the time of termination, Ms. Catherwood had a clear disciplinary record, had received training with respect to harassment in the workplace and was familiar with the policies concerning harassment, having herself lodged complaints of sexual harassment against two of her
Questions to be Determined and Findings
- Did the three incidents occur as reported?
- Dancing incident (NO)
- Touching Mr. Alfaro’s head (YES)
- Making an obscene gesture (NO)
- Was the City reasonable in terminating Ms. Catherwood’s employment? (NO)
Analysis
The Collective Agreement had no “just cause” article for discipline or discharge of an employee. However, all employees, unionized and otherwise, signed an employment contract which clearly outlined “just cause” for discipline or discharge.
The employer has in place a robust policy concerning sexual harassment in the workplace and drew upon the points within the policy that specify “sexually suggestive comments or gestures, unwelcome remarks, and physical contact of a sexual nature”.
With respect to the dancing incident, the Arbitrator found that Mr. Alfaro and Mr. Lichey’s versions of events concerning the dancing changed over time and what was first discussed as something Ms. Catherwood typically participated in on Fridays was reframed as sexual in nature. However, in both versions, it was noted that the dancing was already occurring prior to Mr. Alfaro entering the room. Therefore, the Arbitrator found:
On the balance of probabilities that Ms. Catherwood’s dancing was somewhat inappropriate for the workplace, but did not constitute sexual harassment.
Second, the touching of Mr. Alfaro’s head was not disputed that it occurred. However, Ms. Catherwood denies that she licked her finger and replied yummy. The arbitrator concluded:
Ms. Catherwood said the entire incident was intended as a joke. I accept that evidence. In my view, even if she said “yummy”, Ms. Catherwood said it with no sexual connotations, as there was nothing else of a sexual nature about any of the surrounding circumstances.
I find the head-touching incident was an inappropriate joke intended to tease Mr. Alfaro, but has not in the circumstances been established as sexual harassment.
With respect to the obscene gesture, the Arbitrator found that there was no evidence in the report from the investigation that Ms. Catherwood admitted to making an obscene gesture in the workplace and therefore it was dismissed.
The Arbitrator in this case suggested, when an individual outright denies allegations of sexual harassment, it is pertinent that an employer ensure that a workplace investigation occur and that on a balance of probability that the complainant is truthful and the allegations are substantiated. In this case, the Arbitrator did not find that to be so. Stating further that,
It is important that in investigating and acting on a complaint of sexual harassment that is denied by the alleged perpetrator, an employer must take care to assess whether the complainant if bringing the complaint forward for improper reasons.
In this case, the Arbitrator concluded that Mr. Alfaro was bringing forward allegations against Ms. Catherwood as reprisal for her bringing forward complaints against two of his colleagues and friends.
Therefore the Arbitrator concluded that although some of Ms. Catherwood’s actions were inappropriate for the workplace the termination of her employment was without just cause. The Arbitrator also rejected the employer’s assertion that the employment relationship cannot be reestablished.
Remedy
Ms. Catherwood be reinstated.
Ms. Catherwood have a two-day suspension on her record.
Ms. Catherwood is to be compensated for lost wages.
Labour Arbitrations
Summary
This case is a labour arbitration between the City of Burlington and CUPE Local 2723, who is representing the grievor, Susan Catherwood.
The Corporation of the City of Burlington has a ‘zero tolerance’ policy in place for sexual harassment in the workplace.
The allegations that were brought forward in 2015 and 2016 which gave rise to a workplace investigation, pursuant to the City of Burlington’s Respect in the Workplace Policy, and precipitated Susan Catherwood being terminated from her job are as follows:
- Ms. Catherwood was dancing, in a sexually suggestive manner, in front of Mr. Alfaro;
- Ms. Catherwood ran her index finger along the shaved head of Mr. Alfaro from front to back, licking her finger and replying “yummy” afterward; and
- Ms. Catherwood using the word “erection” and making a hand gesture indicating an erect penis.
At the time of termination, Ms. Catherwood had a clear disciplinary record, had received training with respect to harassment in the workplace and was familiar with the policies concerning harassment, having herself lodged complaints of sexual harassment against two of her
Questions to be Determined and Findings
- Did the three incidents occur as reported?
- Dancing incident (NO)
- Touching Mr. Alfaro’s head (YES)
- Making an obscene gesture (NO)
- Was the City reasonable in terminating Ms. Catherwood’s employment? (NO)
Analysis
The Collective Agreement had no “just cause” article for discipline or discharge of an employee. However, all employees, unionized and otherwise, signed an employment contract which clearly outlined “just cause” for discipline or discharge.
The employer has in place a robust policy concerning sexual harassment in the workplace and drew upon the points within the policy that specify “sexually suggestive comments or gestures, unwelcome remarks, and physical contact of a sexual nature”.
With respect to the dancing incident, the Arbitrator found that Mr. Alfaro and Mr. Lichey’s versions of events concerning the dancing changed over time and what was first discussed as something Ms. Catherwood typically participated in on Fridays was reframed as sexual in nature. However, in both versions, it was noted that the dancing was already occurring prior to Mr. Alfaro entering the room. Therefore, the Arbitrator found:
On the balance of probabilities that Ms. Catherwood’s dancing was somewhat inappropriate for the workplace, but did not constitute sexual harassment.
Second, the touching of Mr. Alfaro’s head was not disputed that it occurred. However, Ms. Catherwood denies that she licked her finger and replied yummy. The arbitrator concluded:
Ms. Catherwood said the entire incident was intended as a joke. I accept that evidence. In my view, even if she said “yummy”, Ms. Catherwood said it with no sexual connotations, as there was nothing else of a sexual nature about any of the surrounding circumstances.
I find the head-touching incident was an inappropriate joke intended to tease Mr. Alfaro, but has not in the circumstances been established as sexual harassment.
With respect to the obscene gesture, the Arbitrator found that there was no evidence in the report from the investigation that Ms. Catherwood admitted to making an obscene gesture in the workplace and therefore it was dismissed.
The Arbitrator in this case suggested, when an individual outright denies allegations of sexual harassment, it is pertinent that an employer ensure that a workplace investigation occur and that on a balance of probability that the complainant is truthful and the allegations are substantiated. In this case, the Arbitrator did not find that to be so. Stating further that,
It is important that in investigating and acting on a complaint of sexual harassment that is denied by the alleged perpetrator, an employer must take care to assess whether the complainant if bringing the complaint forward for improper reasons.
In this case, the Arbitrator concluded that Mr. Alfaro was bringing forward allegations against Ms. Catherwood as reprisal for her bringing forward complaints against two of his colleagues and friends.
Therefore the Arbitrator concluded that although some of Ms. Catherwood’s actions were inappropriate for the workplace the termination of her employment was without just cause. The Arbitrator also rejected the employer’s assertion that the employment relationship cannot be reestablished.
Remedy
Ms. Catherwood be reinstated.
Ms. Catherwood have a two-day suspension on her record.
Ms. Catherwood is to be compensated for lost wages.
Summary
The following case is a grievance filed by the Memorial University of Newfoundland Faculty Association (MUNFA) on behalf of Dr. Sutradhar. The MUNFA is grieving a 20-day suspension of pay that was imposed upon Dr. Sutradhar following a complaint from a graduate student of unwanted sexual touching and investigated by the respondent, Memorial University of Newfoundland (MUN).
The complainant of sexual harassment against Dr. Sutradhar was an international graduate student under the supervision of Dr. Sutradhar. Her claim is that on several occasions he touched her in inappropriate ways. The Head of the Department of Mathematics and Statistics, confirms that he instructed Dr. Sutradhar to alter the configuration of his office so that the desk was place in a way that it separated him and his students. This never occurred and the placemen to furniture necessitated students sitting directly beside Dr. Sutradhar. The complainant states that during their regular meetings he would touch her arm and leg and on one occasion he moved his hand up her skirt.
Following the complainant’s allegations the university conducted an investigation. Using MUN’s policy on harassment and discrimination, they followed the prescribed procedures and concluded that on a balance of probabilities that sexual harassment took place. In considering the nature and severity of the sexual harassment, the university imposed a 20-day suspension of pay.
The university submitted they followed the prescribed process under the harassment and discrimination policy and given the outcome of the investigation saw fit to impose a 20-day suspension of pay. Stating that, the decision was determined with “having regard to the repeated physical contact over a lengthy period of time, the increasing seriousness of the contact, and the power imbalance in the relationship”.
The Association on behalf of the Grievor submitted that the complainant was not a credible witness and that the Arbitrator should decide credibility in favour of the Grievor. The Association noted that the complainant gave multiple contradictory statements throughout the complaint process and insinuated the complaint was precipitated by the fact that the complainant was performing poorly within her graduate program.
Questions to be Determined and Findings
- What is the effect, if any, of the conduct of the investigation by the Investigator; (NONE)
- Did the Employer have just cause to impose discipline on the Grievor on the grounds of sexual harassment; and (YES)
- Did the employer have just cause to impose the penalty of a 20 day suspension without pay? (YES)
Analysis
The Board reserves the right to review the procedures undertaken by the Investigator and determined whether they aligned with Procedural Fairness as outlined in the MUNFA Collective Agreement.
The Grievor stated that the Investigator should not have required face-to-face contact for the interview and that his written responses should not adversely impact him. This Board stated that it is not for them to tell an Investigator how to go about the investigation but rather to determine whether the procedure was followed.
The Board finds that the Investigator’s investigation as well as the conduct of the University President are aligned with the Procedures as outlined in the MUNFA Collective Agreement.
In determining on a balance of probabilities whether the Employer proved the allegations, the Board considered Faryna v. Chorny with respect to credibility:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must be to reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
The Board considered the relationship with the Grievor and complainant in this situation, as well as the Grievor’s failure to heed the advice of the Department Head with respect to his office furniture arrangement and in weighing the credibility the Board accepts the complainant’s version of events.
With respect to the 20 days suspension without pay, the Board considered that the complaints spanned over a period of time, the complainant was vulnerable due to her status as an international student and a graduate student and therefore the Board ruled that the 20 day suspension was to be upheld.
Summary:
This case is an application filed with the Manitoba Labour Board against the University of Manitoba Faculty Association (UMFA) for an unfair labour practice contrary to Section 20 of the Labour Relations Act (the “Act”). The applicant alleges that the failure of UMFA to seek judicial review of the arbitration award issued by Arbitrator Michael Werier in December 2008 where the dismissal of the Applicant from the University of Manitoba was upheld breached UMFA’s duty under the collective agreement to take reasonable care in representing his interests.
The Applicant’s employment was terminated by the University on November 2007 as a result of a complaint filed by a student. The centrality of the complaint and reason for dismissal of the Applicant was based upon allegations that he had sexually harassed the student over a period of time including engaging in numerous sexual acts with her to which she did not consent. The Applicant denied the allegations and filed a grievance. The grievance was not revolved and the matter was referred to Arbitration. In the 85-page document produced by the Arbitrator, it stated “there was just cause for discipline and a clear case for discharge”, additionally the University provided evidence of two previous cases of inappropriate conduct by the Applicant of a sexual nature involving students.
The Arbitrator noted that the central issue that needed to be considered was one of credibility. Weighing whether the events and D.J’s version was more credible or whether the Grievor’s version of events was more credible on a balance of probabilities. Using Justice O’Hallaran’s time-tested remarks in Farnya V. Chorney the Arbitrator ruled:
After a review and consideration of the evidence, I have determined for the reasons that follow that I accept D.J’s version pf events and reject the Grievor’s version of events. I believe her and I do not believe him.
Questions to be Determined and Findings:
- Did UMFA fail in taking reasonable care in representing the interests of the Applicant in not seeking judicial review of the arbitration award issued by Arbitrator Michael Werier? (NO)
Reasoning:
The leading case to be considered by the Manitoba Labour Board is Bednarski and relied upon in Maintenance Trades (2006). In both of these cases the Board considered the question of whether a union’s refusal to seek judicial review of an arbitration decision may, in appropriate circumstances, constitute a breach of the duty of fair representation. However, it is important to note that just because an award does not go in favour of the Grievor does not mean that a union has failed in their duty of fair representation. Further, the decision to seek judicial review lies solely with the union and only in very rare or compelling circumstances would the Board second guess the judgment of the union.
Therefore, although section 20 of the Act may encompass “an obligation to seek judicial review of an arbitration award, the Board will only interfere with the Union’s decisions in extreme or exceptional circumstances” further stating,
For the Board to conclude that a union should file a judicial review application, the defects in the arbitration award must be so patent and pervasive that the Board can readily conclude that the union would be acting arbitrarily not to do so. That is certainly not the case here. The union fulfilled its obligations under s.74 of the Act when it reached the honest and legally rational opinion that it would not judicially review the arbitrator’s award.
The Union fulfilled its responsibility in contracting out an Arbitration of the complaint, which lasted 10 days and produced an 85-page award in which the complainant and not the Applicant was to be believed.
Outcome:
The original Arbitration was properly conducted, the Union’s decision not to file for judicial review and the university’s decision to terminate employment on the grounds of sexual harassment are upheld.
Human Rights Cases
Summary:
On July 17, 2017 the Employee filed a complaint alleging that the Owner sexually harassed her in her employment in violation of section 13 of the Human Rights Code [Code].
In May 2017, the Employee began working for the Company cleaning RVs. At the time she was 24 years old, with a grade 11 education. She is a single mother and this was the first job she was able to attain since the birth of her child. Her position was an on-call position.
The Employee alleges that on June 3, 2017 the Owner in engaged in unwanted sexual advances, including unwanted touching.
The Employee reported the incident to Mr. S, another man for whom she performed on-call work for on the same property. She informed Mr. S that she was going to go to the police. At this time, Mr. S said that the Owner wanted to offer her an RV to live in and he would pay her rent for 3 months. He did not want her to report the incident to the police.
On July 17, 2017 the Employee filed her complaint with the commission. On July 21, 2017 she accepted an on-call job from Mr. S, who informed her his friend wanted to “get to know her the way that the owner did”. On July 28 the Owner received notice of the human rights complaint.
Between August 9 – 17 the Employee was in contact with Mr. S regarding the human rights complaint and he was attempting to resolve the issue on behalf of the Owner.
Mr. S and the Employee agreed upon a settlement of $800 with a promise that she would be able to keep her job.
The Employee met with the Owner to receive her financial settlement and he presented her with a waiver to sign. Following that interaction, the Employee claims she was never contacted again for employment with either Mr. S or the Owner.
Questions to be Determined?
- Can the case move forward with a settlement already in place?
Findings:
- Can the case move forward with a settlement already in place? (YES)
Reasoning:
The Tribunal found that people are not able to contract out of their rights under the Human Rights Code, citing Insurance Corporation of British Columbia v. Heerspink, [1982] @ SCR 145 at 158. For that reason, regardless of whether or not the parties have entered into a settlement agreement with respect to a human rights dispute, it does not deprive the Tribunal of jurisdiction to hear the dispute.
The Tribunal has frequently dismissed complaints in the face of a settlement agreement on the basis that proceeding with the complaint would not further the purposes of the Code, however, in this case, the Tribunal found that it could proceed for the following reasons:
- The language of the release;
- Unconscionability – “which exists where there is an inequality of bargaining power and a substantially unfair settlement”;
- Undue influence;
- Whether the party received independent legal advice;
- Conditions of duress – which may be related to the timing of the agreement, financial need, or other circumstances;
- And whether the party received little or no consideration for the release.
In considering the above reasons, the Tribunal found that the case should go forward and be heard before the Tribunal, stating, the substantial unfairness of the bargain combines with the power differential between the parties, the Employer’s conditions of economic and emotional distress at the relevant time, the lack of power legal advice, and the nature of the allegations to persuade me that the purposes of the Code are not served by holding these parties to this bargain.
Outcome:
Case may proceed.
Summary:
On March 31, 2006, the applicant (Dianne Ford) received an email from a user named Dianne’s Stalker. At the time the applicant was seven months pregnant and a faculty member at Nipissing University.
The applicant’s partner forwarded the email to several members of the senior administration, following which a meeting with campus security took place.
The applicant indicated that she had an idea who the sender of the offensive email might be but declined to tell the university.
After several corresponding emails, it was agreed upon with the parties that a Security Guard would not attend class on Monday morning following the incident. Other options were discussed in terms of another faculty member sitting in on the class or walking Dr. Ford to class, both of which were declined by Dr. Ford.
Technology Services attempted to trace the offensive email and was able to determine that it was sent from a computer in the University Library, however, the computer was in a public area and no login credentials were required to use the computer.
It was noted that Ms. Ford refused to name the individual she thought was responsible was the harassing email. On April 13, 2006 the applicant was responsible for invigilating an exam by herself. Dr. Ford stated that she was extremely anxious and this caused her preterm labour, a claim that was not substantiated with any medical proof.
Dr. Ford never returned to the institution following her parental leave. In her exit interview, she stated that the reasons for leaving were primarily because of the opportunity that the other position offered, however, she noted that if she did not have the new position she would likely be actively seeking other employment as a result of the incident.
Questions to be Determined and Findings:
- Did the applicant experience discrimination and harassment in her employment on the bases of sex contrary to ss. 5(1), 5(2) and 7(2) of the Code? (YES)
All parties agree that the offending email constituted harassment. The question now becomes, whether the ‘directing mind’ of the respondent met its substantive and procedural obligations under the Code.
- Did the management of the respondent University respond and investigate the harassment adequately?
In applying the test outlined in Laskowska v. Marineland Inc., 2005 HRTO 30 (CanLII), the following questions must be asked:
- Did the employer meet its obligation to provide a healthy work environment? (YES)
It was found that the university did meet its obligations in providing a healthy work environment.
- Did management communicate its actions to the applicant? (NO)
Although Initial communication following the incident was effective, the communication throughout the process broke down, due to two reasons. The university primarily communicated with the applicant’s husband and the university failed to follow-up to Dr. Ford’s exit interview request regarding the complaint.
- Was the respondent prompt in dealing with a harassment complaint? (YES)
- Was the issue dealt with seriously? (NO)
Although both Security Services and the university administration were prompt in their initial response, their tenacity and efforts were not maintained beyond the initial response.
- Was there an awareness by the employer that sexual harassment is prohibited conduct? (YES)
However, it was noted that awareness and training of how to effectively reply with empathy was lacking.
- Did the employer demonstrate that there is a complaint mechanism in place? (YES, but NO)
There is a harassment and discrimination policy in place, however, in order for the procedures to be triggered, an offender must be named.Due to the fact that without an individual accused of the harassment, the procedure was not available to Dr. Ford and therefore a policy review was precluded.
Reasoning:
The respondent University met its duty to provide a safe work environment, however, they failed to remain diligent in their pursuit of the matter and gaps in policy and procedure due to an unidentified accused and the breakdown in communication mean that the university was ineffective in responding to Dr. Ford’s complaint.
Therefore, in responding to the harassment, the respondent University met its substantive obligations under the Code. However, because after its initial response, the University failed to remain diligent in pursuing the matter and because of the failure to sustain communications with the applicant, I find that the University did not meet its procedural obligations under the Code.
Remedy:
The following is a summary total of the monetary remedies outlined in these reasons for decision:
- $15,000.00 for injury to dignity, feelings and self-respect; and
- $1,950 for ongoing counseling and psychotherapy.
Summary
Shelby Anne Opheim worked for the Respondents between May and June 2011. During this time Ms. Opheim alleged she was subjected to a series of harassing behaviors from Mr. Gill as a result of her sex and age, including the following unwelcome sexual conduct: a sexualized and demeaning work request, sexual comments, sexual requests and sexual touching.
Ms. Opheim was 18 years old when she began working for the Respondents. She testified that within the first two weeks of her employment, Mr. Gill began to make sexually explicit comments to her. Soon thereafter, Mr. Gill was grabbing and slapping her buttocks, attempting to grab her by the hips and pull her into his lap. She asked him to stop on each occasion, but he only laughed at her. This unwanted sexual touching continued and accelerated in severity, as Mr. Gill began forcing his hands up Ms. Opheim’s skirt and grabbing at her breasts.
Of particular note in the analysis of the case is that part of the claim was for the clothing that was requested of Ms. Opheim to wear while at work, she was requested to wear a skirt and heels and the Tribunal found that this constituted “creating a sexualized work environment”.
Questions to be Determined and Findings
- Is there a prima facie case of sexual harassment? (YES)
- Is there a prima facie case of discrimination based on sex? (YES)
- Is there a prima facie case of discrimination based on age? (NO)
Analysis
The CHRT deemed that the complaint had made both a prima facie case of sexual harassment and discrimination based on age, but not on discrimination based on age. In the analysis the CHRT stated that the complainant gave clear and specific evidence consistent with the allegations in her complaint of sexual conduct to which she was exposed – both verbal and physical.
The harassment involved both verbal and physical, and in the physical aspects of the complaint, it is alleged that the respondent grabbed the complainant’s breasts and buttocks and forced a hand up the complaint’s skirt – a severe enough incident to constitute sexual harassment on a sole occurrence.
Since the owner of the Mobilicity was also the offender and the complainant indicated that she had asked him to stop, this constitutes notice to the employer. Furthermore, the Respondent opted not to call his wife, Jasmin Gill, to testify and dispute that Ms. Opheim made a complainant regarding the sexual harassment to her. This weighed in the favour of the complainant.
Further, because the harasser is also the sole proprietor of the corporate Respondent, in accordance with s.65 of the CHRA both are deemed responsible.
Citing Robichaud v. Brennan (1984) and Janzen v. Platy, supra where the courts held that sexual harassment constitutes discrimination based on sex, the Tribunal found in favour of the complainant.
The Tribunal accepted Ms. Opheim’s evidence as it was consistent, given in a forthright and straightforward manner. Further, the Tribunal had concerns about the Respondents’ failure to call Mr. Gill’s wife, the only alleged witness in the matter, and their failure to produce the videotapes that they indicated would exonerate them in relation to the allegations.
In accordance with sections 7(b) and 14 of the Canadian Human Rights Act (“the Act”) the Tribunal concluded that the Respondents committed a discriminatory practice in sexually harassing Ms. Opheim and that this also constituted adverse differentiation in the course of her employment based on the prohibited ground of sex. The Tribunal dismissed the Complainant’s allegation of discrimination based on age, due to lack of evidence.
The Tribunal found that although the complainant’s age was mentioned in conversation that that in and of itself does not constitute discrimination based on age and there was no other evidence presented to support such a claim and therefore the court’s dismissed this claim.
Remedy
- $1,788 as compensation for lost wages;
- $7,500 as compensation for pain and suffering;
- $12,000 as compensation for willful and reckless conduct.