In this post, we'll talk about Ontario cases, Human Rights Tribunal decisions and statutory protections against sexual harassment. Continue reading to learn more.
Topics Will be Covered in This Post:
1. What is Sexual Harassment?
Sexual harassment in the workplace is the most serious form of workplace harassment that deserves the most severe penalty. Any form of sexual harassment is strictly prohibited under different statutes such as Bill 168, Bill 132, the Occupational Health and Safety Act and the Human Rights Code as well as under the common law in sexual assault cases.
In Janzen v. Platy Enterprises, [1989] 1 SCR 1252, the Supreme Court of Canada has ruled unanimously that sexual harassment is discrimination based on sex.
Sexual harassment may include unsolicited sexual jokes, or unwanted touching and repetitive gestures of affection, physical assault, including attempted and actual rape. Sexual harassment includes cyber harassment as well. Email, blogs, Facebook, cell phone text messaging, Whatsapp, etc. are all possible domains for sexual harassment.
An Employer has a responsibility and an affirmative duty to maintain a harassment-free healthy working environment not only in the physical premise and the work space but also in the cyberspace controlled by the Employer. Under certain circumstances, such legal obligations are extended to property owners and those who owes a duty of care to people working on the premise.
2. An Overview of Bill 168 – Violence and Harassment in the Workplace
Bill 168 amends the Ontario’s Occupational Health and Safety Act (“OHSA”). It came into force on June 15, 2010 and aims to protect workers from violence and harassment. The Bill introduces new protections and outlines harsh penalties for all employers in Ontario who fail to meet their new responsibilities and duties.
Employers are now required to assess risks of workplace violence and harassment, to develop corresponding policies and procedures for investigating and handling complaints and incidents, and to implement proper communication and programs for protecting workers.
What are Workplace Harassment and Violence?
According to the Bill, workplace harassment occurs when a worker in the workplace is the victim of a course of vexatious comments or conduct that is known, or ought reasonably to have been known, to be unwelcome.
Workplace violence occurs when a worker in the workplace is the victim of the exercise of physical force that causes or could cause physical injury. Violence could also include an attempt to exercise such force, or a statement or behaviour that could be reasonably interpreted as a threat to exercise such force.
Highlights of the bill include the following requirements:
Develop and implement a policy that specifically deals with workplace violence and harassment
Develop a program to inform employees about the policy and to implement that policy on an on-going basis
Take reasonable precautions to protect workers from domestic violence that occurs in the workplace
Conduct workplace assessments on the risks of workplace violence, and to report back to the health and safety committee or representative, or if neither exist, directly to the employees
Identify risks of workplace violence from a person with a history of violent behaviour and determine what information should be disclosed to protect the safety of workers and
Allow workers to refuse to work if they believe that they are at risk of workplace violence.
3. An Overview of Bill 132 – Sexual Violence and Harassment Action Plan
Bill 132 entered into force September 18, 2016. It amends the Occupational Health and Safety Act (OHSA), establishing specific requirements with respect to sexualized harassment and violence prevention in Ontario’s workplaces.
Bill 132 expanded the definition of “workplace harassment” to include a new term, “workplace sexual harassment” within the definition of “workplace harassment” under the OHSA.
“Workplace sexual harassment” Under Bill 132 is defined as:
1. Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
2. Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant, or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.
The key changes arising from Bill 132 include:
the addition of a definition of “workplace sexual harassment” in the definition of “workplace harassment” under the OHSA;
a new requirement that the workplace harassment program be developed and maintained in consultation with the Joint Health and Safety Committee or a health and safety representative;
the workplace harassment program be reviewed yearly, provide a means to report incidents or complaints of workplace harassment, and set out how complaint will be investigated and dealt with;
a new requirement for employer to address alternate means of reporting complaints of workplace harassment;
a new requirement for employer to conduct an investigation that is “appropriate in the circumstances” when the employer becomes aware of or ought to be aware of any complaint or allegation of workplace harassment;
confidentiality and reporting obligations relating to workplace harassment investigations; and
a new power to the Ministry of Labour (MOL) to order an independent workplace harassment investigation at the employer’s expense.
Further, Bill 132 also amended certain provincial legislation by removing limitation periods for certain civil or criminal proceedings relating to sexual violence under the Ontario Limitations Act, unless the proceeding was
1. dismissed by a court and no further appeal is available; or
2. settled by the parties and the settlement is legally binding.
The amendment to the Limitations Act makes it crystal clear that sexual assault victims or victims suffered from misconduct of a sexual nature can proceed with their civil claims on their own terms. Moreover, these changes apply retroactively meaning that they apply regardless of when the act of sexual assault occurred and even if a former limitation period had already expired.
The Ministry of Labour has published a Code of Practice, to provide guidance to employers in addressing workplace harassment.
4. Protections Under the Occupational Health and Safety Act
The Occupational Health and Safety Act (OHSA) imposes legal obligations for employers, property owners and other persons to ensure that all workplaces comply with OHSA.
Pursuant to Section 1 of OHSA, a workplace is defined as “any land, premises, location or thing at, upon, in or near which a worker works.”
Part III of OHSA specifies the legal obligations of these workplace parties.
Under Section 25 of OHSA, employers are responsible for, among other things:
Taking all possible and reasonable precautions to protect the health and safety of all their workers;
Ensuring that equipment, materials and protective equipment are maintained and in good condition;
Providing information, instruction, and supervision to protect workers and ensure their health and safety well-being; and
Co-operating with health and safety representatives and Joint Health and Safety Committees.
Under Section 29 of OHSA, property owners must ensure that, among other things:
workplace facilities are provided and maintained and in good condition;
workplaces comply with OHSA to protect the health and safety anyone working on the premises; and
no workplace is constructed, developed, reconstructed, altered or added to except in compliance with OHSA.
Regarding harassment, there are two main types of cases you can claim under Occupational Health and Safety Act (OHSA). 1) Reprisal by employer for trying to enforce the rights protected by OHSA; and 2) being a victim of office harassment.
Reprisal against by the employer: OHSA requires employers to provide employees with a healthy and safe working environment that is free from discrimination and harassment. An employee who is terminated by the employer for trying to enforce OHSA protections can file a reprisal complaint against the employer with the Ontario Labour Relations Board (OLRB).
Click here to learn more about how to file a complaint to OLRB for a reprisal complaint.
Workplace Harassment Complaints: Unlike the Employment Standards Act (ESA), OHSA applies to all workers, who are defined in Section 1 as a person who performs work or supplies services for monetary compensation. In other words, you are protected even if you are a seasonal worker or an independent contractor or any other forms of workers that are ineligible for protection under ESA. You can submit a workplace harassment complaint if:
you reported to your employer that you were being harassed at work and your employer did not make sure an investigation appropriate in the circumstances was conducted
your employer does not have a workplace harassment policy or program
your employer did not provide training on the policy and program
Click here to learn more about how to file a complaint to Ministry of Labour for a Workplace Harassment Complaint.
5. Protection Against Sexual Harassment Under the Human Rights Code
Pursuant to Janzen v. Platy Enterprises Ltd., as mentioned above, the Supreme Court has stated that sexual harassment is a sex based discrimination and by definition a violation of the Human Rights Code.
Section 7 (2) of the Human Rights Code (the Code) states that every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Section 7 (3) of the Code states that every person has a right to be free from:
1. 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; or
2. a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
Legal test for sexual harassment
To establish a prima facie case of workplace sexual harassment, the worker must establish that the harasser:
engaged in a course of vexatious comment or conduct against he or she in a workplace;
because of sex, sexual orientation, gender identity or gender expression;
where the course of comment or conduct is known (actual knowledge) or ought reasonably to be known (constructive knowledge) to be unwelcome?
Courts and Tribunals would also consider factors such as the balance of power between the parties.
The leading case is Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R 1252. The Supreme Court held that sexual harassment in the workplace includes a broad range of conduct which negatively impacts the work environment. This could include sexual gestures and sexual posturing, but doesn’t have to be limited to those instances only.
Discriminatory intent is not required. Part 3 of the sexual harassment test is an objective test of which a reasonable objective person should know or ought to know someone in the Victim’s shoe would find the conduct unwelcome.
A prima facie case of discrimination based on sex is established against the harasser even if he or she didn’t mean it, or it was just a joke, if it would reasonably be regarded as unwelcome and Part 1 and Part 2 of the sexual harassment test are met. For the same token, any evidence of actual knowledge that particular conduct or comment is unwelcome will satisfy part 3 of test.
Anderson v. Law Help Ltd., 2016 HRTO 1683
Anderson nicely demonstrated how the Human Rights Tribunal of Ontario (HRTO) applies the sexual harassment test in a workplace sexual harassment case.
The applicant alleged that after she began working at Law Help Ltd., the manager began to request that she met with him in the office boardroom, whereupon he would tell her how his wife, whom the Applicant reported to, did not like her because his wife was jealous of her.
Subsequently, the manager began to send the Applicant a series of text messages that would ask her what she had planned over the weekend and also invited her to go clubbing. The Applicant alleged that these text messages and the comments that the manager had made about his wife, made her feel uncomfortable.
The applicant alleged that the manager then propositioned her for a relationship with him and suggested that such a relationship would result in some financial benefits. The applicant ultimately rejected the manager which resulted in him being rude and disrespectful to her, not paying her on time and then failing to pay her full entitlements when everyone else was being appropriately compensated. This finally resulted in the applicant’s resignation.
The tribunal awarded the Applicant $22,000 in general damages for compensation for injury to dignity, feelings and self-respect.
The Human Rights Tribunal of Ontario (HRTO) determined that a significant component of meeting the test for sexual harassment was whether a reasonable person would know that that the alleged behaviour would be regarded as unwelcome.
In this case, there’s physical evidence showing that the manager had actual knowledge that the text messages and comments were unwelcome in the form of an actual text message the manager sent to the Applicant stating “I guess you are NOT interested” when the applicant stopped engaging in text messages. There’s also evidence showing that the manager continued his “sexual advances” despite the Applicant’s lack of interest.
The HRTO reasoned that the power imbalance between the parties by in terms of age gap between the Applicant and the Manager and the fact that the Applicant was a young woman who was starting out in her career played a significant part in the determination that the manager should have known that his advances were unwelcome from an objective perspective.
6. Protection Against Sexual Harassment and Violent Under Common Law
Sexual assault is an actionable wrong under Common law. Not only does the typical 2-year limitation period not apply to such a legal proceeding (criminal or civil), the range of proper defendants in a sexual assault or an attempted sexual assault case include third parties that owe a duty of care to the victim, including but not limited to property operator of the premise at which the sexual assault occurred.
The following cases showcased how the Courts addressed the issues of sexual harassment and sexual assault and violent under Common law.
Fox v. Narine, 2016 ONSC 6499
This case demonstrated that the range of proper defendants in a sexual assault case extends to third party that owes a duty of care to the victim.
In Fox, the Defendant, Anduhyaun Inc., moves to strike the Statement of Claim arguing that the action is out of time; that the applicable 2-year general limitation period had expired by the time the action was commenced.
The plaintiff is the estate of Cheyenne Santana Marie Fox. The moving party, the Defendant, Anduyaun Inc., operates a woman's shelter. Cheyenne Santana Marie Fox was, at the material time, resident at the shelter. On June 1, 2012, the defendant, Navin Narine, is said to have followed Cheyenne Santana Marie Fox from a bar to the shelter where he climbed a wall or a fence onto the property where the shelter is located and sexually assaulted her for several hours.
The plaintiff pleads that the shelter was supposed to be a place of safety but that the assault was the result of the negligence of the defendant, Anduyaun Inc. (the operator of the shelter).
There is nothing in the record that connects Navin Narine to Anduhyaun Inc.. There is nothing to suggest that it, or those associated with the shelter, were, in any sense, aware of Navin Narine. There is no basis on which it could be argued that Anduhyaun Inc. is vicariously liable for his actions.
The question before the Court is that whether section 16(1)(h) of the Limitations Act can be applied to a defendant that is a third party and not the perpetrator of the assault?
The Court answered in the affirmative and held that the Defendant, Anduhyaun Inc., as operator of shelter, owed duty of care to Cheyenne Santana Marie Fox such that its breach would represent cause of action for negligence. When shelter holds itself out as available to provide abused or pregnant women with safe place to live and individual responds by taking up offer, necessary proximity exists to found duty of care.
The Court reasoned in paragraph 18 that:
It is relevant to remember that what is being considered here is the interpretation of a statutory provision that would allow for an exception to a limitation period that would otherwise apply. Counsel for Cheyenne Santana Marie Fox points out that the exemption found in s. 16(1.3) of the Limitations Act, 2002, is the result of an amendment found in legislation that was passed and received Royal Assent this year (2016): the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016. The policy behind this statute is to improve the protection the law offers to the victims of sexual violence. This is contrary to a proposition that would limit the application of a statutory provision that extends that protection to those that carry the responsibility of a duty of care that would otherwise apply. There is no consideration that overrides the prima facie duty of care that is in place.
Cook v. Joyce, 2017 ONCA 49
This case demonstrated that there's no limitation period for a case involving sexual harassment or sexual assault.
The Respondent, Avie Cook, sues the Appellant, Ronald Joyce, seeking damages for an alleged sexual assault. Ms. Cook alleges Mr. Joyce touched her in a sexual manner without her consent on the morning of May 19, 2011 at the Appellant’s home.
The Appellant Joyce denies sexually assaulting Ms. Cook and brought a summary judgment motion arguing that the Respondent’s sexual assault claim was brought to court in 2013 and, thus, is barred by the two-year prescription period in the Limitations Act, 2002, S.O. 2002.
The motion judge dismissed Joyce’s motion, and he appealed to the Court of Appeal. The Appellant Joyce argued that s. 16(1)(h) of Limitations Act should not be applicable to him retroactively.
The Court of Appeal held that s. 16(1)(h) is to be applied retroactively. In paragraph 19, the Court of Appeal stated that:
Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act significantly changed the provisions of the Limitations Act, 2002 concerning sexual assault claims. Section 16(1)(h) of the Act was amended to provide there is no limitation period in respect of "a proceeding arising from a sexual assault."
The Court further held, in paragraph 22, that:
By enacting ss. 16(1.1) and (1.2), the Legislature expressly addressed the application of the amendments to a proceeding, such as Ms. Cook's, which was commenced before March 8, 2016. The "no limitation period" regime applies to Ms. Cook's action unless (i) her proceeding was dismissed by a court and no further appeal is available or (ii) it was settled by the parties and the settlement is legally binding.
Zando v. Ali, 2018 ONCA 680
This case demonstrated that the Courts are willing to award high judgment awards in a case involving Sexual harassment in the workplace.
In Zando, the Ontario Court of Appeal has rejected the notion that general damages for a sexual assault victim should be relatively modest if it is a single incident involving adults and no breach of trust.
The plaintiff, Dr. Iram Zando, and the defendant, Dr. Syed Nasir Ali, are both originally from Pakistan and were friends and colleagues at Sarnia General Hospital. The litigation stems from an incident in July 1999, when Ali went to the home of Zando because of what he said was an urgent matter. While there, he was alleged to have sexually assaulted her.
At trial, an award of $200,000, which included $175,000 in general damages and $25,000 in punitive damages was granted. Legal Costs of $325,000 and pre-judgment interest of $155,000 were also awarded to the plaintiff in Zando as the case was plagued with delays in going to trial. The Defendant appealed the decision.
The Court of Appeal, in its ruling issued Aug. 7, 2018 ONCA 680, denying the appeal, found that the trial judge awarded nonpecuniary damages that were in the appropriate range based on past case law in this area and, as a result, there was no error in principle. The Court of Appeal held in paragraph 24 that:
The trial judge's decision with respect to punitive damages was based on the fact that the appellant's conduct in sexually assaulting the respondent was morally reprehensible and should be punished and denounced, and that he had not been punished criminally. The fact that he had not been punished criminally was a relevant factor (to satisfy the court of the need for such damages as deterrence) but was not the reason punitive damages were awarded. As such, I see no reversible error in the trial judge's decision to award punitive damages in this case.
7. Conclusion
Sexual harassment is a heinous crime that deserves the MOST serious and severe punishment, and any form of sexual harassment is strictly prohibited under the Common law, Human Rights Code and the Occupational Health and Safety Act, especially so after the amendments made in Bill 132 and Bill 168.
A prima facie case of sex based discrimination is not difficult to made out. It is not required to prove that the harasser in the case of sexual harassment that such harassment was sex based or that he or she is discriminatory towards women in general.
If you have been a victim of sexual harassment, DON’T take it for granted. Open up and let a harassment lawyer or a workplace discrimination lawyer assists you.
Don't Wait, Act Now before it's too late. Call us now at 647-849-6582 or Contact Us Now if you have any questions or concerns in related to employment contract, termination, sexual harassment, sexual assault, discrimination or severance package or you want to book an appointment for a legal consultation.