Human Rights Office

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Human Rights Office

Tracy Morgan v. University of Waterloo and David Mackay, 2013 HRTO 1644 (CanLII)

Summary:

The applicant, Tracy Morgan and the respondent, David Mackay were both employed as counsellors in the Counselling Services Department at the University of Waterloo.  Dr. Morgan alleges that on the night of June 16, 2009 she was sexually harassed by Mr. Mackay. This alleged harassment occurred while both parties were attending a dinner and dance at the annual conference of the Canadian Association of College and University Student Services (CACUSS). In addition, Dr. Morgan alleges that Mr. Mackay harassed her at a potluck lunch on March 2, 2010 and six additional times when the two encountered one another in the hallway at work. In addition to examining the allegations of sexual harassment and harassment, this case considered whether or not the University met its Code-mandated duty to investigate Dr. Morgan’s allegations. It also considered whether or not the University’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents constitute reprisal under the Code. It was found that Mr. Mackay did sexually harass Dr. Morgan on June 16, 2009. Regarding the allegations of harassment at the potluck lunch and within the hallway at work, it was not found that Mr. Mackay harassed Dr. Morgan. In relation to the University of Waterloo’s Code-mandated duty to investigate, it was found that in relation all incidents, the University met its duty to investigate. It was also not found that the University’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents constitute reprisal under the Code.

Question(s) to be Determined:

1. Did Mr. Mackay sexually harass Dr. Morgan on June 16, 2009?

2. Did the University of Waterloo meet its Code-mandated duty to investigate Dr. Morgan’s allegations of sexual harassment relation to June 16, 2009?

3.Did Mr. Mackay harass Dr. Morgan at the March 2, 2010 potluck lunch or any of the six occasions Mr. Mackay and Dr. Morgan encountered each other in the hallways between March 5 and April 6 2010?

4.Did the University of Waterloo meet its Code-mandated duty to investigate Dr. Morgan’s allegations concerning the potluck lunch and hallway incidents?

5.Did the University of Waterloo’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents constitute reprisal under the Code?

Findings:

1.Did Mr. Mackay sexually harass Dr. Morgan on June 16, 2009?

YES

2.Did the University of Waterloo meet its Code-mandated duty to investigate Dr. Morgan’s allegations of sexual harassment relation to June 16, 2009?

YES

3.Did Mr. Mackay harass Dr. Morgan at the March 2, 2010 potluck lunch or any of the six occasions Mr. Mackay and Dr. Morgan encountered each other in the hallways between March 5 and April 6 2010?

NO

4.Did the University of Waterloo meet its Code-mandated duty to investigate Dr. Morgan’s allegations concerning the potluck lunch and hallway incidents?

YES

5.Did the University of Waterloo’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents constitute reprisal under the Code?

NO

Reasoning:

1.On the night of June 16, 2009 Mr. Mackay consumed a significant amount of alcohol. Dr. Morgan did not consume alcohol on this night. In this case, conflicting accounts as to what happened on June 16, 2009 were produced by Dr. Morgan and Mr. Mackay. There was no other direct evidence or “reliable” witnesses who could recount the evening. In the end “it is the applicant’s clear, cogent and convincing evidence as to what happened that outweighs Mr. Mackay’s less persuasive account of what happened and satisfies me that Dr. Morgan was touched as claimed” (para 80).

2.Citing Wall v. University of Waterloo (1995), 27 C.H.R.R. Morgan states the University has failed to meet its Code-mandated duty to investigate.  She alleges that the University did not deal with her allegations seriously. It was found that the University did take Dr. Morgan’s allegations seriously. “It determined that Mr. Mackay would be moved during the course of the investigation to minimize his contact with Dr. Morgan. It then conducted an investigation pursuant to the University’s anti-discrimination policy. The investigation was conducted by a human right specialist, the Director of the University’s Conflict Management and Human Rights Office, Mr. Erikson. Mr. Erikson conducted approximately 12 interviews and issued an investigation report. This is a serious response to an allegation” (para 86).



Dr. Morgan further asserts that the University’s response to her complaint was not prompt. It was found that the University’s response to the applicant was “reasonable.”“The University met with the applicant on June 18, two days after the CACUSS event, to identify possible options for the applicant to pursue. The University promptly met with the applicant following the conclusion of the WRPS [police investigation] and began the investigation process by asking Dr. Morgan for a written account” (para 97).Dr. Morgan submits that the University failed to return her to a healthy work environment because during the course of the investigation the University allowed two instances when Dr. Morgan and Mr. Mackay came into contact with one another. It was stated “the requirement to return a person to a healthy work environment after an allegation that the person’s rights under the Code have been violated is to return that person to a discrimination-free environment. There are no allegations that the two incidents cited by Dr. Morgan exposed her to further discriminatory treatment” (para 104). It was further noted that the University did move Mr. Mackay to a satellite office during the investigation in order to minimize interactions between the two.

3.In this case it was found the Mr. Mackay did not harass Dr. Morgan at a potluck on March 2, 2010 and that he did not harass her on any of the six occasions when they met each other in the hallway between March 5 and April 6 2010. Based on the accounts from Dr. Morgan, Mr. Mackay and other staff in attendance at the potluck, it was determined that it was “not probable that at a staff lunch, Mr. Mackay’s first function after returning to Needle Hall, Mr. Mackay would attempt to intimidate Dr. Morgan or try to threaten her sense of emotional or physical security by choosing to violate her personal space” (para 128). In relation to the hallway incidents the motivations behind these encounters were questioned. “Even if Mr. Mackay was angry at Dr. Morgan, I do not accept her theory that Mr. Mackay was retaliating against her in the hallways and doing so with forethought. I do not find it probable that Mr. Mackay would have timed his entries into the hallway in order to bring about an encounter where Dr. Morgan would be obliged to push herself against the wall in order to avoid him as Dr. Morgan claimed. I find Dr. Morgan’s particular claim that Mr. Mackay rounded a blind hallway corner at a high speed on April 6 in order to deliberately affect a collision with Dr. Morgan (having calculated this was the time Dr. Morgan was likely to be in the hallway) to be highly improbable” (para 135).

4.In respect to the alleged incidents of harassment at the potluck lunch and hallway incidents it was found that the University met its Code-mandated duty to investigate. The reason provided for this finding relates to the fact that Dr. Morgan reported her complaints to the Director of her department, Dr. Rattan, rather than issuing a formal complaint or complaints pursuant to the University’s anti-discrimination policy, Policy 33, as she did when she complained to the University about Mr. Mackay’s actions on June 16, 2009. “I do not find that the University was required, given the nature of how Dr. Morgan made her complaints, to determine whether the anti-discriminatory provisions of Policy 33 and Dr. Morgan’s Code rights were violated. I find it reasonable, under these circumstances, that the University’s intervention was less formal, that it consisted of Dr. Ruttan meeting with Mr. Mackay and Dr. Morgan to determine their positions with no formal findings of culpability as a result of this investigation. It was reasonable, in my view, that Dr. Ruttan determined from his dealings with Mr. Mackay and Dr. Morgan that he wanted to emphasize to both of them the importance of acting professionally and his interest in restoring their working relationship” (para 145). 

5.It was found that the University’s response to Dr. Morgan’s allegations about the potluck lunch and hallway incidents did not constitute reprisal under the Code. “I do not find that Dr. Ruttan’s [Director of program] letter and the comments he purportedly made during his meeting on May 25 with Dr. Morgan constitute reprisal. In my view, Dr. Ruttan was communicating why the University was of the view that it could not do more to resolve the type of complaints the applicant had been making, that the University believed they were based on conjecture. In my view, this is not punishing or retaliating against the applicant for having made such complaints, but rather identifying why the University believes, based on its experience, that future complaints of this type are “not helpful” (para 153).

Remedies:

In this case, it was found that Mr. MacKay sexually harassed Dr. Morgan on June 16, 2009. Mr. Mackay is solely liable for the compensation awarded to Dr. Morgan. a.Mr. Mackay is liable to pay Dr. Morgan the sum of $7,500 in monetary compensation for injury to her dignity, feelings and self-respect together with $278 for Dr. Morgan’s medical expenses.b.Post-judgment interest is payable from the date of this Decision in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, if the above amounts are not paid to Dr. Morgan within 30 days of the date of this Decision (para 205).