First Reference company logo

First Reference Talks

News and Discussions on Payroll, HR & Employment Law

decorative image

The Human Rights Code and Res Judicata: G.G. v. […] Ontario Limited

scale-moneyGenerally speaking, res judicata[1] (Latin for “a thing adjudicated”) is the legal doctrine which prevents the same matter from being tried a second time once there has been a verdict or decision in regard to that matter. Under Ontario’s Human Rights Code, a criminal matter being decided in regard to a matter that contains a breach of the Human Rights Code does not necessarily prevent an applicant from filing at the Human Rights Tribunal of Ontario. This was the case in G.G. v. […] Ontario Limited.

Background

G.G. was hired by the personal respondent and owner on May 27, 2009 on a probationary basis as a graphic designer.[2] Shortly thereafter, the applicant alleged that she had been sexually harassed and solicited by the personal respondent. The incident was reported to the police, and the personal respondent was charged and found guilty of sexual assault. In spite of the conviction, the applicant was still able to continue with her application and actually relied on elements of the criminal trial in her application.

The hearing

The Human Rights hearing took place on May 30, 2012. Testimony was heard from both the applicant and the personal respondent. As there had been a criminal trial associated with the incident where both applicant and respondent had testified, the applicant requested that the Tribunal accept the transcript of the oral judgment made in the Ontario Court of Justice finding the personal respondent guilt of sexual assault.[3] In the criminal trial, based on findings of fact, the judge had ruled that the personal respondent had engaged in activities such as having pulled the applicant on to his lap, kissing her on the lips, caressing her breast, and telling her that she was beautiful and that he wanted to hire her.

The decision

The Tribunal stated in its decision that “…the personal respondent’s comments and touching set out above constitute a course of vexatious conduct or comment that the personal respondent knew or ought reasonably to have known were unwelcome. This conduct is contrary to sections 5(1), 7(2), and 9 of the Code which state:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex ….

7.(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

9.No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Harassment is defined in section 10 of the Code as:

engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.”[4]

The Tribunal also found that the personal respondent’s inappropriate touching and comments that included a reference to the applicant’s attractiveness and an offer of employment constitutes a sexual solicitation or advance contrary to section 7(3)(a) of the Code which states:

7.(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;[5]

Damages

As a result of the respondent’s behaviour, the applicant was awarded $18,000.00 to the applicant for violation of her inherent right to be free from discrimination and harassment, and for injury to her dignity, feelings and self-respect. In addition to other remedies, the applicant was also awarded $11,930.00 for loss of wages.

G.G. v. […] Ontario Limited stands to remind employers that a breach of “the code” may have serious civil, as well as criminal repercussions.


[1] Black’s Law Dictionary, Ninth Edition 2009 p. 1425

[2] G.G. v. […] Ontario Limited. 2012 HRTO 1197 Para. 2

[3] Ibid., Para. 4

[4] Ibid., Para. 8

[5] Ibid., Para. 9

Follow me

Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
Follow me
Kindle

, , , , , , , , , , , , , , , , , , ,

Comments are currently closed.

One thought on “The Human Rights Code and Res Judicata: G.G. v. […] Ontario Limited