Human Rights Office

Human Rights Office
Human Rights Office

C.K. v. H.S. 2014 HRTO 1652 (CanLII)

Summary of Facts from Criminal Proceedings (Sexual Assault Conviction):



• The assault occurred on September 15, 2010 when the individual respondent was working as a doctor’s assistant at a naturopathic clinic in Toronto

• The applicant worked at the naturopathic clinic as a medical secretary and had been employed for only a short time

• The applicant stayed after work on September 15, 2010, at the individual respondent’s request to train her regarding the re-ordering of medications in the medication room

The individual respondent stated that the applicant looked stressed and he wanted to take her blood pressure, which she allowed

• The applicant stated that she had a sore rib and the individual respondent wanted to check it and moved his hand towards it, but she said no

• During the blood pressure check, the respondent put his hand on the applicant’s thigh and she said no and left the room

• After this, the parties were in the medication room where the applicant read out medication labels to the respondent with the view to him being certain she could pronounce them correctly and know how to order them. The respondent was slightly behind the applicant at this point

• The applicant read out one of the labels and when she did not get a response, she turned to look at the respondent and saw his penis was out

• The respondent grabbed the applicant’s left hand and pulled it to touch his penis. At about the same time, he reached his right hand around her back and touched her right breast and then placed his hand at the back of her pants, which she felt was an attempt to pull them down

• The respondent ejaculated on the floor and some of the ejaculation got on the applicant’s pants. The police analyzed the applicant’s pants and found some of the respondent’s DNA on them

• The respondent’s actions were persistent, as he continued to pursue sexual contact with the applicant, despite the fact that she twice told him “no” when he touched her

• The respondent used strong force to compel the applicant to touch his penis

 • The evidence did not support the applicant’s contention that the respondent was in a position of authority over her

Question(s) to be Determined:

1.Do the respondent’s actions on September 15, 2010 (sexual assault), amount to sexual harassment under the Code? 

Findings:

1. Do the respondent’s actions on September 15, 2010 (sexual assault), amount to sexual harassment under the Code? 

YES

Reasoning:

1. In this case the criteria necessary to establish a case of sexual harassment were outlined in detail.

(1) the individual respondent was her employer, her employer’s agent, or another employee;

(2) the individual respondent harassed her by engaging in a course of vexatious comment or conduct toward her that was known or ought reasonably to have been known to be unwelcome;

(3) the individual respondent harassed her in the workplace;

(4) the individual respondent harassed her because of sex

Relying on the criteria listed above, the findings in this case are explained “The respondent was the applicant’s co-worker and the incident occurred in their workplace. The applicant twice told the respondent not to touch her, on her rib and thigh respectively, and I find that the respondent knew or ought to have known that the applicant found physical contact with him to be unwelcome….In my view the incident of September 15, 2010, can be seen as a course of vexatious conduct as the respondent committed a series of escalating acts of touching the applicant in a sexual manner, albeit in a short period of time, which the applicant rejected” (para 32). Also addressed in this case is whether a single incident can amount to sexual harassment under the Code. Citing Murchie v. JB’s Mongolian Grill (No.2), 2006 HRTO 33 and Romano v. 1577118 Ontario Inc. (No.2), 2008 HRTO 9, it is stated that the Tribunal has recognized before that a single incident can meet the definition of harassment.

Remedy:

In this case the respondent stated that he had already been punished for his action and therefore should not be punished again. The differences between remedial remedies and punitive remedies were hi-lighted. Due to the seriousness of the sexual harassment an award of damages for injury to dignity, feelings and self-respect, at the upper end of the range was provided. In addition, the applicant was awarded lost wages for the three month period in between when she left the clinic and when she secured a position with Rexall Pharma Plus. 

1. Within 60 days of the date of this decision the respondent shall pay the applicant $45,000 as monetary compensation for injury to dignity, feelings and self-respect, along with pre-judgment interest, in accordance with s. 128 of the Courts of Justice Act R.S.O. 1990, c.C.43, as amended.

2. Within 60 days of the date of this decision, the respondent shall pay the applicant $6,760, less deductions required by law, as compensation for lost wages along with pre-judgment interest, in accordance with s. 128 of the Courts of Justice Act, as amended.

3. In the event that the respondent fails to make the payments described above within 60 days of the date of this decision, the respondent shall pay post-judgment interest in accordance with s. 129 of the Courts of Justice Act, as amended.