Human Rights Office

Human Rights Office
Human Rights Office

Simpson v. Consumers’ Association of Canada, 2001 O.J. No. 5058 (C.A.) (CanLII)

Prior decision – Simpson v. Consumers’ Assn. of Canada, 1999 ON SC 14880 (CanLII)

In this decision, Mr. Simpson sued the Association for wrongful dismissal. Mr. Simpson was terminated from the Association for sexual harassment of female employees. In this case, the trial judge ruled that Mr. Simpson had been wrongly dismissed and awarded damages against the Association. In this case the trial judge decided that the incidents occurred outside of the office and regular working hours and were consensual and among friends.

Summary:

In the original case, there were six incidents that were examined.
1. Sandy Reiter – Was hired as an executive assistant by Mr. Simpson and told by him that opportunities could arise for her if she had a sexual relationship with him. She refused and then later resigned from her position because the workplace became unpleasant.
2. Rosalie Daly Todd – Was employed by Mr. Simpson as legal counsel. Rosalie claimed the Mr. Simpson tricked her into going to a strip club with him and then engaged in sexual conversation. On a separate occasion on a business trip, Rosalie claimed that Mr. Simpson engaged in sexual conversations with her that were unwelcome.
3. Joanne Roy – Had an affair with Mr. Simpson and then resigned from her role at the Association when the relationship cooled.      4. Mr. Simpson invited Joanne and a male contract employee to his cottage to discuss business. After the business meeting he and Joanne went skinny dipping.
5. While attending a board meeting in Quebec City, Mr. Simpson undressed and had a hot tub in front of other employees.
6. In a hospitality suite in Banff, Mr. Simpson grabbed the bum of Julie Glascot (employee). This incident was witnessed by Heidi Hutchings (employee) who complained. Heidi was later fired by Mr. Simpson. In the Appeals Court decision it was stated that the trial judge made numerous errors of fact and law (para 56). Of particular importance was the discussion around what constitutes “inside” and “outside” of work. In this regard the Appeals Court stated that many of the events including the hot tub and hospitality suite incident took place at Consumers’ Association Canada meetings or retreats. It was stated that just because these incidents “occurred after the official business of the meetings, and, for example, in a hospitality suite, does not mean that they are outside the workplace and therefore outside of the employment context” (para 57). In addition the judge in this trial stated that in relation to these incidents employees attended because they were perceived to be staff events regardless of when or where they were occurring (e.g. after hours or in a social setting). Based on these errors the Court of Appeal agreed with the arguments of the Association, The Association had just cause for dismissing Mr. Simpson. Mr. Simpson’s claim for damages for wrongful dismissal was dismissed.

Question to be Determined:

1.    Did the trial judge err in fact and law in relation to the decision rendered in Simpson v. Consumers’ Assn. of Canada, 1999 ON SC 14880?

Findings:

1.    Did the trial judge err in fact and law in relation to the decision rendered in Simpson v. Consumers’ Assn. of Canada, 1999 ON SC 14880?

YES

Reasoning:

1.    In this case it was found that the trial judge made numerous errors of fact and law. These errors in fact and law are included below:

1) in his finding that the respondent's sexual conduct occurred outside the workplace;

(2) in implicitly concluding with respect to the respondent's conduct which he found to be consensual and among friends, that the conduct was not "unwelcome", and that in the context of the respondent's supervisory role, it was not inappropriate;

(3) in implicitly rejecting most of the evidence of Sandy Reiter as to what occurred at the conference at Fort Qu'Appelle, when her evidence went unchallenged by cross- examination and when he accepted small but significant parts of her evidence which were denied by the respondent;

(4) in failing to find that any sexual harassment which existed in the "culture" of the CAC workplace was created by the respondent himself, and in exonerating the respondent's
conduct on the basis that the CAC had no sexual harassment policy in place during the relevant period;

(5) in finding that because the respondent apologized to Julie Glascott, the incident was closed, when the respondent did not admit the true facts of what occurred and when the incident took place in public, was observed by Heidi Hutchings, and was viewed with great concern by her and others;

(6) in concluding that the respondent's conduct was unrelated to the resignations of Sandy Reiter or Joanne Roy, or the terminations of Nancy Enright and Heidi Hutchings, and in failing to recognize that the respondent's conduct created an atmosphere where the careers of female employees were, or were perceived to be, dependent on his sexual interaction either with them, or with other female employees;

(7) in concluding that the respondent's admitted conduct toward female employees as described, was acceptable for the executive director in charge of all staff in the organization, and that it did not warrant dismissal. Of particular importance in this case was the discussion around the definition of a     workplace. In the original hearing the trial judge’s understanding of the “workplace” was central in determining that Mr. Simpson had been wrongfully dismissed. In this case, the definition of a “workplace” was explored and described in detail.

    It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of     the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact. In this case, the trial judge erred by making an overall finding without considering the individual circumstances of each incident (para 61).