Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 14: Sexual Harassment/Assault and Damages

In this meeting the HRLG discussed cases relating to sexual harassment/assault, damages awarded through the Human Rights Tribunal, and the importance of having and following institutional human rights procedures.

Cases

What are the criteria used to establish a case of sexual harassment under the Code?

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

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.
Harriott v. National Money Mart and Wade Desmond, 2010 HRTO 353 (CanLII)

Harriott v. National Money Mart and Wade Desmond, 2010 HRTO 353 (CanLII)

Summary:

The applicant, Marjorie Harriott, worked as a Customer Service Representative at National Money Mart from April 2007 till June 2008. Mr. Wade, the respondent in this case, was the Branch Manager at the National Money Mart location where Marjorie Harriott was employed. Harriott alleged that on a regular and continuous basis she observed Mr. Wade staring at various parts of her body. In addition, Harriott alleged that Mr. Wade made derogatory/sexualized comments about his female employees and some of the female customers. The applicant also stated that Mr. Wade inappropriately made physical contact with her while at work. It was found that Mr. Wade breached both the company’s policy on sexual harassment and multiple sections of the Code. In addition, it was found that Mr. Wade’s comments created a poisoned work environment for Harriott and most of the female employees with whom he worked. Making reference to Laskowska v. Marineland of Canada, 2005 HRTO 30 (CanLII), it was found that the company failed to investigate complaints from a number of employees, including Harriott. In relation to the accusation of employment termination as a result of making a complaint of sexual harassment against Mr. Wade, it was found that Harriott had not proven the requisite intent on the part of the company to reprise against her based on her sexual harassment complaint. 

Question(s) to be Determined:

  1. Did Mr. Wade sexually harass or solicit the applicant, thereby violating the Code?
  2. Was the applicant exposed to a poisoned work environment while working at the branch managed by Mr. Wade?
  3. Was the company’s investigation of the applicant’s complaint of sexual harassment reasonable in the circumstances?
  4. Was the applicant’s employment terminated by the company as a result of making a complaint of sexual harassment against Mr. Wade?
  5. If there was a breach of the Code, what are the appropriate remedies?

Findings:

  1. Did Mr. Wade sexually harass or solicit the applicant, thereby violating the Code? YES
  2. Was the applicant exposed to a poisoned work environment while working at the branch managed by Mr. Wade? YES
  3. Was the company’s investigation of the applicant’s complaint of sexual harassment reasonable in the circumstances? NO
  4. Was the applicant’s employment terminated by the company as a result of making a complaint of sexual harassment against Mr. Wade? NO

Reasoning:

  1. Citing Smith v. Menzies Chrysler, 2009 HRTO 1936 (CanLII) and the company’s own discrimination/harassment policy, it was found that Mr. Wade sexually harassed the applicant. In this case it was found that Mr. Wade knew that his comments and conduct were unwelcome. In this particular case it was argued by the respondent that because the applicant made little or no objection to Mr. Wade’s comments that a finding of sexual harassment should not be rendered. This argument was rejected. “As observed by the Tribunal in Streeter, supra, protest or objection to the allegedly harassing conduct is not a precondition to a finding of harassment: Howard v. deRuiter, 2004 HRTO 8 (CanLII). It was also noted at paragraph 35 of the Streeter decision that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to a supervisor’s behavior, an employee may go along with unwelcome conduct: see Simpson v. Consumers’ Association of Canada (2001), 57 O.R. (3d) 351 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 83” (para 108).
  2. Provided during the case were numerous examples of the “derogatory, insulting and crude comments made by Mr. Wade in relation to his female employees and female customers” (para 112). These “derogatory,” “insulting” and “crude” comments were directly associated to the creation of a poisoned work environment.  In this case the poisoned work environment “became the norm for the applicant as a result of which she was, at a minimum, uncomfortable on virtually a daily basis and, as time went on, she became extremely anxious and stressed with physical symptoms such as panic attacks and vomiting” (para 113).
  3. Referencing the Laskowska v. Marineland of Canada, 2005 HRTO 30 (Can LII) in relation to the employer’s obligation to investigate an allegation of sexual harassment, it was found that the company failed to investigate the applicant’s complaints of sexual harassment. In the decision it was stated “that the company’s investigation of the applicant’s complaint did not satisfy the second and third requirements of the Marineland test, in that the company did not take the complaint seriously, did not deal with the complaint promptly, did not take care of its employee, did not demonstrate the appropriate sensitivity to the concerns of the applicant (for example, it was she who had to ask for the transfer and the access to the EAP) and generally did not conduct a reasonable investigation” (para 123).
  4. In this case, the applicant alleged that her termination from employment was a result of her prior sexual harassment complaints. The respondent in this case stated that the applicant’s termination from employment was a result of her poor performance and nothing else. In this case it was important to determine the motivations behind the employment termination. Examining this question it was stated “I accept the argument of the respondents that the issue before me is not whether or not there was just cause for the termination of the applicant’s employment; rather, the question is whether or not there was an intent on the part of the company to reprise against the applicant” (para 131). In this matter “the applicant has not proven the requisite intent on the part of the company to reprise against her based on her sexual harassment complaint against Mr. Wade” (para 135). 

Remedies:

In this case Harriott sought $40,000 in damages. In total she was awarded $30,000. This level of compensation was awarded based on the three breaches of Code outlined within the case (sexual harassment, poisoned work environment and failure to investigate). The awarding of damages in this case takes into account the fact that Harriott’s termination from employment was not found to be an act of reprisal. 

  1. Within 30 days of the date of this Decision, the company and Mr. Wade are jointly and severally liable to pay $22,500 for violation of the applicant’s inherent right to be free from discrimination and harassment;
  2. Within 30 days of the date of this Decision, the company shall pay $7,500 for violation of the applicant’s inherent right to be free from discrimination and harassment;
  3. The respondent shall pay the applicant pre-judgment interest from the date of the Application to the date of this Decision in accordance with s. 128 of the Courts of Justice Act;
  4. The respondent shall pay the applicant post-judgment interest in accordance with s. 129 of the Courts of Justice Act from the date that is 30 days from the date of this Decision;
  5. The company is required to amend and distribute to all employees of the company in Ontario its discrimination/harassment policy within three months of the date of this Decision. Counsel for the respondent company is required to send a copy of the amended policy and confirmation of its distribution to all Ontario employees to counsel for the applicant by no later than three months plus 10 days from the date of this Decision.
  6. The company is required to conduct training of its managerial personnel within the province of Ontario within the time frames and as set out in paragraph 155 of this Decision (6 months), and is also required to provide confirmation of such training to the counsel for the applicant as set out in the same paragraph.
     
Emslie v. Doholoco Holdings Ltd. O/A The UPS Store #425, 2014 MHRBAD 6
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How do Tribunals determine the mitigation of damages in human rights cases?

Beata Laskowska v. Marineland of Canada Inc. 2005 HRTO 30 (CanLII)
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Tracy Morgan v. University of Waterloo and David Mackay, 2013 HRTO 1644 (CanLII)
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What types of remedies are available to Human Rights Tribunals?

Terri-Lynn Garrie v. Janus Joan Inc. 2014 HRTO 272 (CanLII)
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Donna Giguere and Ontario Human Rights Commission v. Popeye Restaurant and Viola Landry, 2008 HRTO 2 (CanLII)
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Jared Davis v. Nordock Inc. and Gerry Stretch, 2012 HRTO 2218 (CanLII)
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Can a Human Rights Tribunal order both reinstatement and lost wages as remedies?

Sharon Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII)
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Can a Human Rights Tribunal award damages for projected lost wages?

Kelly v. University of British Columbia (No. 4), 2013 BCHRTD 302 (CanLII)
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