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Sutton v. Jarvis Ryan Associates Inc., Peter Jarvis and Michael McColl 2010 HRTO 2421 (CanLII)

Summary:

In this case the applicant, Ann-Marie Sutton, provided bookkeeping services to Jarvis Ryan Associates Inc. (JRA). Anne-Marie was an employee of her own corporation, Phatcat Services but worked occasionally for JRA. Peter Jarvis, one of the respondents in this case was one of the principals in the firm and managing partners of JRA. Michael McColl, the other respondent in this case, was a client of the firm who had been hired as a contractor to provide food services during the retreat in North Carolina. The events in question for this case occurred during a firm retreat to North Carolina in May 2008. It is important to note that while there are some similarities between the stories provided by the various parties in this case, there are also significant differences in their stories. On the night of May 14, 2008 the applicant, the two respondents and another staff member from JRA, Dipta Baidya, decided to go into a hot tub. Prior to and during their time in the hot tub alcohol was consumed. After being in the hot tub for some time Mr. McColl and the applicant started “making out”. At the time the applicant described this “making out” as “not unwelcome”. While in the hot tub, the applicant stated that Mr. Jarvis physically moved the applicant’s legs to spread them open. After removing her bathing suit top and “making out” more with Mr. McColl, the applicant stated that they both decided to stop and exited the hot tub. In June of 2008, the applicant told her husband that she had made out with someone while in North Carolina. After speaking with her husband at length about the events, the applicant felt like she was missing part of her memory (gaps) regarding the events. In late June 2008, the applicant resigned from her job and indicated that she thought she had been drugged at some point in the evening on May 14th. After her resignation, the applicant and her husband notified or spoke with multiple employees at JRA to notify them that they believed she had been drugged and sexually assaulted and that the respondents were responsible. The applicant and her husband contacted two partners at the firm and described these allegations. No investigation by JRA was done in relation to these allegations. Instead, the applicant and her husband were sent letters from a law firm telling her to cease contact with the respondent McColl and JRA.

Question to be Determined:

    1. Was the applicant, Ann-Marie Sutton in an employment relationship with Jarvis Ryan Associates Inc.?
    2. Was the applicant subject to harassment, sexual solicitation and advancement as defined by the Code?
    3. Did Jarvis Ryan Associates Inc. fulfill their duty to investigate the applicant’s complaint of discrimination?

Findings:

    1. Was the applicant, Ann-Marie Sutton in an employment relationship with Jarvis Ryan Associates Inc.?
    YES

    2. Was the applicant subject to harassment, sexual solicitation and advancement as defined by the Code?
    NO (unable to conclude applicant met the burden of proof)

    3. Did Jarvis Ryan Associates Inc. fulfill their duty to investigate the applicant’s complaint of discrimination?
    NO

Reasoning:

1.    Yes, in this case it was determined that Ms. Sutton was in an employment relationship with Jarvis Ryan Associates Inc. In make this finding it was stated that, “although the applicant had independent bookkeeping clients through her company and provided services under the umbrella of JRA, she was significantly dependent on the firm for a number of things, including assignment of work, use of facilities, setting of her charge out rate to clients of the firm and supervision of the work performed by firm members” (para 98). In addition, it was made clear that even though the events in question happened outside of regular work hours and outside of the office, they were still considered under the umbrella of work related functions.

2.    In this case the applicant failed to meet the burden of proof necessary to demonstrate that she had been subject to harassment, sexual solicitation and advancement. In coming to this finding, the credibility of the applicant was a serious consideration. In this case it was believed that Ms. Baidya’s testimony was the most reliable. A number of factors were drawn upon to support this conclusion:

    (a) the applicant's actions immediately upon exiting the hot tub, when she told Ms. Baidya that "nothing happened", do not suggest that she was in a drugged state, incapable of communicating clearly or otherwise not in control of her actions;
    (b) the applicant waking up early the next morning to bid farewell to one of her alleged violators;
    (c) the fact that the applicant did not tell her mentor at the firm, Mr. Ryan or his partner
    about any difficulties during their joint trip home or exhibit any behaviour that might suggest that she was upset about what had happened;
    (d) the subsequent reporting of consensual conduct to Ms. Sowrey upon her return home; and
    (e) the tone of the emails sent to both Ms. Sowrey and respondent McColl within weeks after May 14 (para 118).

3.    Using Laskowska, as precedent setting case law, it was decided that JRA did not fulfill its duty to investigate the applicant’s complaint of harassment. In making this finding, it was stated that JRA did not take the applicant’s complaint seriously, it did not deal with it promptly, nor did it deal with it in a sensitive manner.

    In my view, at the very least, the reasonable thing for the respondent JRA to have done would have been to allow the applicant an opportunity to explain why she needed to make the complaint and to have given her an opportunity to lay out her concerns either in person or in writing. I find this obligation exists despite what JRA may have thought of  the merits of the concerns being raised or the unorthodox and inappropriate manner in which the applicant was raising her concerns (para 142).

   The fact is that the applicant was saying that she had suffered some form of assault during a JRA sponsored event. Even if JRA thought her complaint unlikely to be found to be true and, given the circumstances, although there was discomfort in meeting with the applicant, privately or otherwise, there were other options open to JRA. The applicant could have been invited to put her concerns in writing, following which JRA could have considered their options, which may have ultimately led to the same result: the sending of a cease and desist letter. The firm's failure to provide the applicant     this opportunity constitutes a violation of their obligations under the Code (para 143).

Remedy:

    In this case it was decided that no monetary compensation would be awarded. Having found a violation of the Code, the following orders were made:

    (a) Within 90 days of the date of this Decision, the principals of Jarvis Ryan Associates Inc. will complete the Ontario Human Rights Commission's on-line training "Human Rights 101" (available at http://www.ohrc.on.ca/en/learning/human-rights-101) or equivalent training on basic principles of human rights, and confirm to the applicant's counsel within 90 days of this Decision that they have done so.

    (b) Within 90 days of the date of this Decision, Jarvis Ryan Associates Inc. will hire an independent human rights expert at its own expense to develop a human rights policy as well as a complaints and investigation procedure that complies with Ontario Human Rights Commission guidelines. Training on this policy will be provided to all principals, managers, supervisors and staff. Jarvis Ryan Associates Inc. will provide confirmation to the applicant's counsel of completion within 90 days of this Decision.