The Human Rights Code and Res Judicata: G.G. v. […] Ontario Limited
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
Latest posts by Kevin Sambrano, Sambrano Legal Services (see all)
- Recent case assessment direction and “creed” - September 25, 2019
- Employer’s duty to investigate under the “Code” - August 1, 2019
- Evidence and credibility at the HRTO - April 24, 2019
Civic holiday or First Monday in August, public holiday or not? Three popular articles this week on HRinfodesk
Comments are currently closed.
One thought on “The Human Rights Code and Res Judicata: G.G. v. […] Ontario Limited”Get Free Updates
Resources and offers
Awards and recognition
#10 on Feedspot's Top 75 in 2016
Employment Blogs
Fodden Award for Best Canadian Law Blog
Legal Culture Award
Runner up in the Fodden Award for Best Canadian Law Blog
Finalist in the Fodden Award for Best Canadian Law Blog
First Reference HR compliance products and services
Recent comments
-
Racialized, foreign-trained lawyer discriminated against during interview
Ageism is a big problem in the legal community. Bay Street firms and others are not interested in applicants' skills, knowledge, etc. unless they are... – Nov 16, 11:05 AM
-
Believing women while remaining neutral: Conducting sexual harassment and sexual violence investigations in a post-#metoo world
Excellent article !! Right on point. So many times we encounter opinionated employer representatives or coworkers who address complaints from positions of bias. Bias that... – Oct 30, 12:07 AM
- Generated by BWP Recent Comments.
[…] speaking, res judicata[1] (Latin for “a thing adjudicated”) is the legal doctrine which prevents the same matter from […]