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
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:
- Was the applicant, Ann-Marie Sutton in an employment relationship with Jarvis Ryan Associates Inc.?
- Was the applicant subject to harassment, sexual solicitation and advancement as defined by the Code?
- Did Jarvis Ryan Associates Inc. fulfill their duty to investigate the applicant’s complaint of discrimination?
Findings:
- Was the applicant, Ann-Marie Sutton in an employment relationship with Jarvis Ryan Associates Inc.
YES
- 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)
- Did Jarvis Ryan Associates Inc. fulfill their duty to investigate the applicant’s complaint of discrimination?
NO
Reasoning:
- 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.
- 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).
- 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.
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:
- 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?
- Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
- Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
- 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?
- Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?
Findings:
- 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
- Was he in a position to confer, grant or deny a benefit or advancement to the applicant?
YES
- Did the respondent’s owner know that his request for a kiss would be unwelcome or ought he reasonably to have known that?
YES
- 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
- Does the series of events that occurred constitute sexual harassment pursuant to s. 7(2) of the Code?
NO
Reasoning:
- 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.
- 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).
- 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).
- 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).
- 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.
Summary:
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:
- Was there discrimination and/or harassment contrary to the Code and the collective agreement?
- Did the employer meet its duty of due diligence?
Findings:
- Was there discrimination and/or harassment contrary to the Code and the collective agreement?
YES
- Did the employer meet its duty of due diligence?
NO
Reasoning:
- 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).
- 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.