Generally 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:
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:
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:
(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
Kevin Sambrano, Sambrano Legal Services
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[…] speaking, res judicata[1] (Latin for “a thing adjudicated”) is the legal doctrine which prevents the same matter from […]