Ontario Human Rights Tribunal decision offers clarity on workplace sexual harassment

November 21, 2014 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Wages and Compensation

With the allegations against CBC Radio personality Jian Ghomeshi dominating the news over the past several weeks, it is useful to examine how the Ontario Human Rights Tribunal addressed allegations of workplace sexual harassment in the recent case of Horner v. Peelle Company Ltd. (2014) HRTO 1211. While the facts in the Horner case are not as explosive as the allegations against Mr. Ghomeshi, they nevertheless provide a useful analysis of what constitutes a sexual solicitation or an advance, what constitutes a reprisal, what constitutes sexual harassment and what remedies are appropriate under the Ontario Human Rights Code (“Code”).

In this case, the Applicant was the Controller and the Individual Respondent was the Owner of the Corporate Respondent. The two individuals shared many common interests in participating in sports and they had developed a close friendship over the preceding 10 years. Over time, the owner of the business developed feelings towards the Applicant and he used his position to try to spark a romantic relationship with her. He ultimately attempted to kiss her after a sporting event. The Applicant did not reciprocate because she believed he was married, she was in a relationship and she believed the advance was contrary to the Corporate Respondent’s policies. After the incident, the Owner’s behavior towards the Applicant changed and he did not spend nearly as much time with her. Ultimately, the Applicant felt she had no choice but to resign.

The Tribunal made a number of findings with respect to this case.

The Owner’s attempt to kiss the Applicant clearly constituted a sexual solicitation or advance because it was unwelcome and the Owner knew it was unwelcome (or ought to have known). The Owner’s conduct was contrary to section 7(3)(a) of the Code which guarantees all workers the right to be “free from a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person”.
After the incident, the Owner minimized his face-to-face contact with the Applicant and reduced her ability to participate in the full range of business related activities she had participated in before. He also tried to avoid her and rearrange her job duties. The Tribunal held these changes to the Applicant’s working conditions after she rebuffed his sexual advance constituted a reprisal contrary to section 7(3)(a) of the Code.
The Tribunal found that the evidence was not sufficient to establish a pattern of sexual harassment in this case. While the Tribunal noted that in appropriate circumstances, a single incident, if serious, will meet the definition of harassment such as a sexually explicit remark, this was not present in the case and this allegation was dismissed.

Based on the foregoing, the Tribunal awarded the Applicant the following:

$5000.00 damages for the sexual solicitation or advance.
$23,000.00 damages for the reprisal.
$50,219.00 in lost wages from the date the Applicant resigned to the date she secured alternate employment (6 months).

This case is a reminder to all employers of the need to have sexual harassment policies in place and to make sure that all employment, including senior managers, are aware of them. Further, it highlights how sexual harassment can stem from activities that occurred both within and outside of the workplace.

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Simon Heath, BA, MIR, LLB, Heath Law

Employment Lawyer and principal at Heath Law, Employment Lawyers

Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more