Human Rights and Equity Office

Human Rights and Equity Office
Human Rights and Equity Office

Meeting 19: Sexual Violence and Sexual Harassment in the Workplace

This meeting focused on cases about sexual violence in the workplace. Barbara Lotan, Sexual Violence Prevention and Response Coordinator was our guest speaker at this meeting.

Cases

Sutton v. Jarvis Ryan Associates Inc., Peter Jarvis and Michael McColl 2010

Summary

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

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 partnerabout 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.

Horner v. Peelle Company Ltd., 2014

Summary

Horner v. Peelle Company Ltd., 2014 HRTO 1211 (CanLII)

In this case the respondent, Christine Horner, worked for Peelle Company Ltd. from 2001 until she resigned in 2012. Ms. Horner was the Financial Controller for Peelle Company Ltd. Hank Peelle (the respondent’s owner), is the sole owner, chief executive officer and president of the respondent. After almost a decade of working together, Mr. Peelle developed romantic feelings for Ms. Horner. These feelings developed throughout the course of their working relationship. During this time Mr. Peelle and Ms. Horner discovered they both had a passion for running. During the time that Mr. Peelle and Ms. Horner worked together their social interactions increased. Leading up to the “attempted kiss” on February 28, 2011, Mr. Horner engaged in what the tribunal described as “secret dating” of Ms. Horner. During this time Mr. Peelle would take Ms. Horner out to lunch and other social functions, always billing the company. On February 28, 2011 Mr. Peelle and Ms. Horner attended the same spin class and after this class Mr. Peelle leaned towards Ms. Horner and asked if he could kiss her. At this point, Ms. Horner indicated that she did not have romantic feelings for Mr. Peelle and that she was in a long-term relationship and that Mr. Peelle was married (at this time, Mr. Peelle and his wife were separated). After Ms. Horner indicated she wasn’t interested in a romantic relationship with Mr. Peelle, they both agreed that the relationship at work did not need to change and that they would keep everything as it was before. After the attempted kiss, Mr. Peelle felt like he had made a big mistake and sent an email to Ms. Horner apologizing and with a copy of the company’s harassment and discrimination policy. He encouraged Ms. Horner to contact legal counsel for the company to discuss the matter further. Ms. Horner did not move forward with a formal process at this time under the auspice that the relationship would remain the same despite the attempted kiss. Unfortunately the relationship between Mr. Peelle and Ms. Horner deteriorated after this point. The in-person conversations diminished and Mr. Peelle began treating Ms. Horner in a colder manner. On October 20th 2011, Mr. Peelle and Ms. Horner met for their quarterly one-on-one meeting. In this meeting Mr. Peelle read notes to Ms. Horner and effectively suggested that Ms. Horner’s conversations with him were in effect “leading him on”. He suggested that although she had indicated she was not interested in him, her actions and conversations conveyed the opposite. On October 24th, 2011, Ms. Horner first tried to resign. After speaking with Mr. Peelle who told her that the relationship would get better and return to what it was like before the attempted kiss, Ms. Horner withdrew her resignation. Unfortunately after this initial attempt at resignation, the situation did not get better and in fact worsened. In March of 2012 Ms. Horner officially resigned from her role with the Peelle Company. Ms. Horner stated that the environment was unworkable.

Question to be Determined

  1. Is the respondent’s owner’s request for a kiss a sexual solicitation or advance within the meaning of s. 7(3)(a) of the Code?
     
  2. Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
     
  3. Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
     
  4. Does his changed behaviour after the rejected kiss incident constitute reprisal or a threat of reprisal pursuant to s. 7(3)(b) of the Code?
     
  5. Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?

Findings

  1.  Is the respondent’s owner’s request for a kiss a sexual solicitation or advance within the meaning of s. 7(3)(a) of the Code?
    YES
     
  2. Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
    YES
     
  3. Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
    YES
     
  4. Does his changed behaviour after the rejected kiss incident constitute reprisal or a threat of reprisal pursuant to s. 7(3)(b) of the Code?
    YES
     
  5. Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?
    NO

Reasoning

  1. Yes, in this case it was determined that the respondent’s owner’s request for a kiss was a sexual solicitation or advance within the meaning of the Code. In this case Mr. Peelle did not dispute the notion that his actions were a sexual solicitation or advance.
  2. In this case Mr. Peelle was in a position to confer, grant or deny a benefit or advancement to Ms. Horner. “The respondent’s owner was the person who decided whether or not to give the applicant her pay raise; on June 20, 2011, he signed the addendum to her employment contract giving her a signing bonus every year for three years” (para 149).
  3. In this case Ms. Horner stated that Mr. Peelle ought reasonably to have known that a kiss would be unwelcomed. Although it was decided that Mr. Peelle genuinely believed that Ms. Horner was romantically interested in him, the judge ruled that even an “honest mistaken belief” does not absolve Mr. Peelle of guilt.

    But I do not agree with the respondent’s assertion that he is entitled to an honest but mistaken belief. The phrase “ought reasonably to know that it is unwelcome” means that an honest but mistaken belief will not be sufficient to escape liability under s. 7(3)(a) of the Code unless the mistaken belief is a reasonable one. In all the circumstances here, I am satisfied that the belief of the respondent’s owner in this instance was not reasonable (para 153).
     

  4. Yes, Mr. Peelle’s changed behaviour after the rejected kiss incident constitutes reprisal or threat of reprisal pursuant to s. 7(3)(b) of the Code.

    In the circumstances here, the evidence establishes that the respondent’s owner was explicitly told by the applicant that his changed behaviour after the rejected sexual advance was unwelcome. After the meeting of May 31, 2011, he essentially acknowledged the reasonableness of the applicant’s perception by promising things would return to the way they were. But they did not. He acknowledges they did not. He wanted to change their interactions because he needed to do that to get over the applicant’s rejection. He tried to make things better by changing her job description but he does not deny that otherwise he continued with the same behaviours the applicant complained about on May 31, 2011, and it is undisputed there was never a return to the kinds of business activities that the applicant was involved in between September, 2010 and February 28, 2011 (para 189).

    That behaviour is the essence of recklessness with respect to intent. He was conscious of what he was doing, knowledgeable of the negative impact he was having on the applicant and he persisted in his behaviour (para 190).

    In addition, attention was paid to the meeting on October 20, 2011 and Mr. Peelle’s “blaming of Ms. Horner for “leading him on”.

    The issue here is not the sad end of the friendship between the applicant and the respondent’s owner; the issue is whether or not his behaviour in blaming her for his discomfort, falsely accusing her of inappropriate behaviour, and telling her not to say anything to him of a personal nature at all can reasonably be said to be a negative action or a threat of negative action. In the context that existed here – a 12-year exemplary employment record and a long-standing friendship – I am satisfied that it can. As the applicant put it, his instructions forced her to put a filter on. She was constantly on edge about what she could and could not say or do; she resigned from the Board of Trade to avoid being in a situation he might misconstrue as being personal (para 184).
     

  5. In this case it was decided that the series of events that occurred did not constitute sexual harassment pursuant to s. 7(2) of the Code.  In particular, attention was given to the question of whether or not the harassment was related to the applicant’s sex or gender and the frequency of these actions.

    The only behaviour complained of that seems to me to be arguably related to gender is with respect to some of the comments made by the respondent’s owner during the meeting of October 20, 2011. As stated above, the way that the respondent’s owner blames the applicant for his own inability to get over her rejection is in keeping with the blame-the-victim mentality that is historically associated with women. It is a negative stereotype of women that they are temptresses and responsible for the inappropriate sexual behaviour of others (para 201).

    That being said, the evidence does not establish that the respondent’s owner knew or ought to have known that particular aspect of his behaviour was unwelcome or that he ought reasonably to have known it would be. There was no hint that any such behaviour     occurred prior to October 20, 2011; indeed, the applicant’s evidence was that she was shocked by it. No evidence was led that similar remarks were made after October 20, 2011. The respondent owner’s e-mail to his marriage counsellor makes it clear he did not anticipate the applicant’s reaction at all and that he did not understand it (para 202).

In conclusion, it was stated that “in all circumstances I am not prepared to find that the single incident where a remark was made blaming the applicant for the respondent’s owner’s inability to get past her sexual rejection constitutes a course of conduct for the     purposes of s. 7(2) of the Code” (para 207).

Remedy

a. The respondent shall pay to the applicant $5,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(a) of the Code and pre-    judgement interest on this amount for the period between February 28, 2011, and the     date of this Decision pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

b. The respondent shall also pay to the applicant $23,000 for injury to dignity, feelings and self-respect related to the respondent’s infringement of s. 7(3)(b) of the Code and pre-judgement interest on this amount for the period between November 1, 2011, and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

c. The respondent shall also pay to the applicant $50,219 for loss of earnings arising from the respondent’s infringement of the Code less the applicable statutory deductions plus pre-judgement interest on this amount for the period between November 22, 2012,     and the date of this Decision pursuant to s. 128 of the Courts of Justice Act.

 d. The respondent shall also pay to the applicant post-judgment interest on the above awarded amounts from the date of this Decision calculated pursuant to s. 129 of the Courts of Justice Act.

Ontario Public Service Employees Union v. Toronto Community Housing Corporation (Security Group), 2015

Summary

Ontario Public Service Employees Union v. Toronto Community Housing Corporation (Security Group), 2015 ON LA 13548 (CanLII)

In this case, Janice Gordon filed a grievance against her employer, Toronto Community Housing Corporation (Security Group) (TCHC) alleging that she had been  subject to sexual harassment and a poisoned work environment when her employer failed to adequately address sexualized rumours circulating in the workplace. Ms. Gordon began working for the TCHC in 2005. During her time with TCHC she worked in a number of roles including parking enforcement officer, community patrol officer and special constable. At the time when Ms. Gordon worked for TCHC she was one of very few female employees and the only black female employee. Between December 2005 and June 2006 rumours started to circulate that Ms. Gordon was engaged in a sexual relationship with Mr. Kenley, a manager within the Community Safety Unit. These rumours indicated that Ms. Gordon was receiving preferential treatment because of her sexual relationship with Mr. Kenley. In October of 2006 Ms. Gordon informed Terry Skelton, Director of the Community Safety Unit about these rumours. After hearing these complaints a meeting was arranged for Ms. Gordon, Mr. Kenley and the Senior Consultant in Human Rights for the Community Safety Unit. At this meeting Ms. Gordon was informed of her options moving forward. In January of 2007 Ms. Gordon indicated that she wanted a formal investigation and filed a workplace complaint. In February of 2008, Mr. Skelton advised Ms. Gordon that an investigation was not necessary and stated that they were going to deal with the rumours in the workplace through an education and training program. As part of this education and training program, emails were sent out to all Community Safety staff stateing that there was a zero tolerance for rumours in the workplace and that this type of behaviour was contrary to the code of conduct for TCHC employees. Since the actions taken by management in relation to the workplace rumours was perceived as ineffective, the union representing Ms. Gordon filed a grievance in July of 2008.

Question to be Determined

  1. Was there discrimination and/or harassment contrary to the Code and the collective agreement?
     
  2. Did the employer meet its duty of due diligence?

Findings

  1. Was there discrimination and/or harassment contrary to the Code and the collective agreement?
    YES
     
  2. Did the employer meet its duty of due diligence?
    NO

Reasoning

  1. In this case it was decided that the rumours circulated in the workplace regarding a sexual relationship between Ms. Gordon and Mr. Kenley amounted to sexual harassment and contributed to a poisoned work environment.

    I am satisfied that the evidence of rumours established that the grievor was subject to sexual harassment contrary to the Code. The workplace is heavily male-dominated and one where hierarchy and authority are valued. Where those attributes are valued, they may also be resented, particularly in a woman. The grievor presented as a strong, confident, and assertive female within that environment. The workplace rumour contained the implicit, and in some cases, explicit message that the grievor was receiving preferred treatment at work from a supervisor in exchange for sexual favours. That, I find, was related to her gender. The evidence established that the rumour was persistent and well-known within the grievor’s work milieu within the CSU and likely circulated with less attention in the rest of that department. That reflected a course of  conduct as the rumour was repeated through the workplace over a significant period of time (para 292).

    I accept that the sexual nature of this rumour disparaged the grievor and that it had a negative impact on her co-workers’ view of the grievor. While I do not suggest that the rumour did not also affect Mr. Kenley, in the circumstances here, the grievor was the subordinate and was being targeted as receiving workplace favours in exchange for sex. It was a course of vexatious comment or conduct that co-workers knew or ought reasonably to have known was unwelcome (para 293).
     

  2. Due to the finding of sexual harassment and a poisoned work environment, the employer has a duty of due diligence. In this case it was decided that, although acting in good faith, they failed to reasonably address the sexual harassment experienced by the grievor. Rather than doing an investigation into the complaints of these rumours, the employer chose to deal with the rumours on a systemic basis by providing training.

    The employer was aware that employees had been exposed to, and were circulating a rumour claiming that the grievor was engaged in a sexual relationship with a supervisor and was receiving preferential treatment in exchange for sex. The deleterious effect of this kind of rumour is not limited to the subject individuals. The workplace environment was poisoned not only because of overt discussion of sexual practices, but because of the increasing resentment toward perceived unfairness; that someone was getting special treatment, benefits, and/or protection at work in exchange for sex. That concern was, or should have been apparent to the employer in November 2006 (para 317).

    Having regard to all of the above, I find that, in meeting its obligation to provide a workplace free from harassment and discrimination, it would have been prudent for the employer to conduct an investigation into the rumours, and the failure to do so in these circumstances was unreasonable. However, even assuming that the employer was not required to investigate the rumours, I find that the actions taken by the employer to address the sexual harassment suffered by the grievor were unreasonable as being both     insufficient and untimely. The employer also failed to act reasonably by failing to address in any way the effect or validity of the rumours circulating about the grievor within the CSU (para 325).

Remedy

Matter was remitted to the parties for consideration of remedy.

Simpson v. Consumers’ Association of Canada, 2001

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

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

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).

Workplace Investigations – Canadian Broadcasting Corporation (CBC) & Canadian Olympic Committee (COC)

CBC – Jian Ghomeshi

This workplace investigation was prompted by the termination of Jian Ghomeshi and the allegations of inappropriate behaviour in the workplace. In total 99 people were interviewed as part of this investigation.  An interview request was sent to Mr. Ghohmeshi’s legal counsel but he declined to be interviewed as part of this process. Through the analysis of interview material and the commonalities presented in these interviews, seven overarching conclusions were drawn through this investigation. In the case of CBC workplace investigation the full report, excluding redactions was publicly released.

Overarching Conclusions

  1. Breach of the Behavioural Standard
    “There was behaviour and conduct on the part of Mr. Ghomeshi that was contrary to the Behavioural Standard established by the CBC. Most prevalent was behaviour that was disrespectful, including behaviour that is "considered to create an intimidating, humiliating, hostile or offensive work environment". Less prevalent, but also present in a small number of cases, was behaviour that constituted sexual harassment” (p. 42-43).
     
  2. Knowledge of Management
    “Management knew or ought to have known of this behaviour and conduct and failed to take steps required of it in accordance with its own policies to ensure that the workplace was free from disrespectful and abusive conduct. It is our conclusion that CBC management condoned this behaviour” (p. 43).
     
  3. Missed Opportunities to Investigate
    “More specifically, management failed to adequately respond to information it received from employees that behaviour and conduct contrary to the Behavioural Standard existed in the workplace. Indeed, we have identified in our Report at least three such
    opportunities for management to inquire and investigate allegations and concerns regarding problematic behaviour that it failed to adequately pursue and address. These opportunities were:

    (a) The Red Sky Document presented to management in the summer of 2012. Management took some steps to respond to issues regarding workflow, volume of work, and characterization of roles, but it failed to address the key issue of Mr. Ghomeshi's behaviour in the workplace;

    (b) An allegation made known to management in the summer of 2014 that inappropriate behaviour on the part of Mr. Ghomeshi might have crossed over in the workplace. While steps were taken in response to this allegation, they were insufficiently probative, too narrow, misdirected and flawed. While a more comprehensive investigation was warranted under the circumstances, one did not occur; and

    (c) Management's receipt of communication from an employee who described the presence of various objectionable behaviours on the part of Mr. Ghomeshi”(p. 43).
     

  4. The Role of the Union “We do not believe the allegation of sexual harassment made by an employee in 2010 came to the attention of management. In this regard, we have concluded that it did come to the attention of the CMG, and it failed to respond properly” (p. 44).
     
  5. Existence of “Host Culture” Host Culture – Was described as having a number of features:
    1. people who occupy a role of a host have big personalities, big egos and big demands
    2. certain types of host behaviour were tolerated and presumed necessary for the job
    3. keep the host happy despite conflicts or difficulties
    4. hosts have the ear of management
      “While the Behavioural Standard is articulated in various policies and articles in the Collective Agreement, in the case of Mr. Ghomeshi, little and insufficient regard was paid to this standard by those who managed him at the CBC, and those who made decisions about his employment at the CBC. In this regard, we have concluded that what is commonly referred to as "Host Culture" was a contributing factor. This failure to appropriately manage contributed to the existence and persistence of the behaviour and conduct identified above” (p. 44).
  6. Who is the Boss?
    “We have also concluded that there was no one who had clear and consistent authority over Mr. Ghomeshi on a day-to-day basis in the workplace. This contributed to an environment in which breaches of the Behavioural Standard occurred. There is a flaw in the manner in which the Q workplace was designed. Producers, the Executive Producer, and Mr. Ghomeshi were all in the same bargaining unit” (p. 44)
     
  7. Weak Systems and Procedures
    i. Over-Reliance on Formal Complaints
    ii. Lack of Comprehensive Data
    iii. Narrow Survey Information
    iv. No System to Measure Behaviour
    v. Generic Training
    “We noted the presence of weak systems and processes on the part of the CBC. This formed part of the overall context in which behavioural breaches on the part of Mr. Ghomeshi were allowed to occur” (p. 44).

In response to these overarching conclusions, nine recommendations were made.

Recommendations

  1. Review and Clarify Policies which set out the Behavioural Standard and with the CMG review related Articles in the Collective Agreement
  2. Training
  3. Conduct Surveys and “Spot Audits”
  4. Establish a Confidential Workplace Hotline
  5. Refresh Workplace Investigation Competencies and Data Keeping
  6. Establish a Respect at Work and Human Rights Ombudsperson
  7. Examination of the Role of Executive Producer
  8. Respect at Work Competencies to be Included in Every Stage of the Employment Relationship
  9. Task Force with the CMG to Address Young People in Organization
    Overall it was stated that if the CBC was serious about making changes, a culture shift in the organization was needed. The shift needed to be consistent and infused within everyday activities.

Canadian Olympic Committee

Following allegations of sexual harassment on the part of the former President of the Canadian Olympic Committee (COC) a workplace investigation was commenced. In this particular case, the COC released a summary of the workplace investigation. The summary breaks down the findings from the workplace investigation into four areas.

Findings and Conclusions

  1. Information Collected from those Individuals who came Forward Voluntarily to Share their Experience
    1. A majority of COC staff interviewed reported experiencing or witnessing harassment (both sexual and personal) during the President’s tenure, both inside and outside of the COC’s offices.
    2. Some non-COC staff who were interviewed also reported witnessing the President engaging in harassing behaviour (either sexual or personal) outside of the COC’s offices in situations in which he was acting as a representative of the COC.
    3. There exists a perception amongst the COC staff that the Board and the SLT(Senior Leadership Team) were aware of information that suggested that harassment was occurring in their workplace and they were unable or unwilling to take steps to address it. As such, many COC staff feel     that the Board and the SLT failed in their obligation to provide a safe environment for COC employees.
    4. There are occasions when certain managers or members of the Senior Leadership Team (SLT) admitted to being in possession of information that suggested that harassment was occurring for COC staff. These same managers and members of the SLT admitted that there were times when they either (i) did not do anything with this information (in some cases because they either did not recognize the behaviour in question as legally problematic, or they did not know what to do with the information); (ii) took steps to try and mitigate or minimize the behaviour for the employee in question, but did not take steps to try to stop the behaviour from occurring; or (iii) passed the information along to someone else but it is unclear as to whether this information was ever acted upon.
    5. Many COC staff are not familiar with the contents of the Policy, were unsure where to find it, and no one recalls having ever been trained on the Policy. There is confusion on the part of COC staff about what constitutes inappropriate workplace behaviour, and the mechanism for complaining about concerns of this nature (p. 3-4).
  2. Information Relating to the Letter of June 13, 2011 and VANOC
    1. As part of the investigation terms of reference it was important to determine what the COC Board and/or members of the senior leadership team knew about the complaints made to VANOC about the conduct of the President.
    2. Although the decision to present the President with the Letter was prompted by one particular employee issue brought forward in April of 2011, there is information in the COC HR file regarding concerns about the President’s behaviour dating back to 2008 which contributed to the decision.
    3. In reaching its decision to provide the President with a Letter in 2011, it appears that representatives of the COC sought to balance the interests of the individuals who had come forward with information and who did not wish to make formal complaints and were afraid of retribution, and the obligation to ensure a harassment-free workplace. Consideration also appears to have been given to the fact that a previous message about the President’s behaviour which was delivered to him at a lunch with the then     CEO in 2008 was vague, did not reference specifics and was not followed by anything in writing.
    4. Those who presented the President with the Letter did not advise the Board at the time.
    5. With the exception of an employee engagement survey done in 2014 and a more recent Survey in September of 2015, no monitoring was done of the President’s behaviour after the presentation of the Letter, despite what appears to be recognition on the part of the certain COC representatives that such monitoring was necessary.
    6. No training was done on the Policy at any time, and specifically after the presentation of the Letter, despite advice having been received in this regard. Had training been provided to staff back in 2011, employees would have had a far better understanding of the types of behaviour that are prohibited in the workplace and would have better understood how to address these issues if they were occurring. At a minimum, conducting training of this nature sends a message to all staff that a workplace that is free of discrimination and harassment is important to the organization, and this was a lost opportunity on the part of the COC to communicate this message to its employees.
    7. Following provision to the President of the Letter, certain members of the SLT did have information regarding alleged behaviour which, if true, could constitute harassment on the part of the President and other COC employees. There appears to have been no meaningful steps taken in response to receipt of this information.
    8. Two COC executives and three members of the Board received information about the VANOC matters, most of which was non-specific and incomplete. This information was never documented and was not shared with the Board as a whole.
  3. Policy Review
    1. The Policy, while technically sound, should be enhanced in order to make it clearer and more accessible to COC staff, and to clarify an obligation to report incidents of harassment or discrimination.
    2. The Policy should also be enhanced to provide for mechanisms for reporting and resolving issues as an alternative to filing a formal complaint. Although a formal complaint mechanism is an important component of an effective harassment policy, exclusive reliance on formal complaints can be problematic for various reasons. In this case, those at the COC who were attempting to deal with concerns which were brought to their attention appear to have found the language in the Policy to be restrictive when the person bringing forward the concern was unwilling to initiate a formal complaint.
    3. There is currently no consistent process or procedure in place which ensures that employees of the COC are familiar with, have read or understand the contents of the Policy.
    4. There has been no training on the Policy since at least 2001, and nothing since 2011 when the President was presented with the Letter.
    5. There are opportunities to further reinforce the required standards of behaviour within the COC in both the “Policy Statement and Guidelines on Ethics” and the “Policy Statement and Guidelines on Whistleblowing” (hereinafter referred to respectively as the “Ethics Policy” and the “Whistleblowing Policy”).
  4. Governance
    1. There was no explicit provision in COC’s governance framework for Board oversight of human resources and the workplace environment.
    2. COC’s governance framework did not set out a comprehensive approach to standards of conduct, and specifically of standards applicable to directors and officers.
    3. There was no explicit mechanism within COC’s policy framework for individuals to raise issues of concern regarding a director’s conduct to the Board other than through a     formal complaint under the Policy.
    4. There was lack of clarity in COC’s governance framework between the role and authority of the Board versus the role and authority of the President which enabled the President to exercise significant control.

Recommendations

  1. Policy Enhancements
  2. Training
  3. Appoint an Individual with Overall Responsibility for Policy Implementation and Administration
  4. Establish a Record Keeping System
  5. Ensure a Means by Which Individuals can Lodge Anonymous Complaints
  6. Consider Revising the Terms of Reference for the Ethics Commissioner to Establish an Independent Resource for Individuals to Bring Forward Concerns Relative to the Policy
  7. More Emphasis on “Respect” and “Wellbeing” as Core Values of the COC for Employees
  8. Continued Use of Surveys and Other Forms of Review to Monitor Culture and Confirm Effective Administration and Enforcement of Policies

As an overarching recommendation it was suggested that the COC really needed to examine and prioritize the health and well-being of its staff to ensure that they were able to move forward productively.