There are many potentially thorny issues that await an investigator who is asked to make findings about a complainant’s consent to an intimate relationship or to a sexual encounter with a respondent, including the effects of trauma on memory, the potential involvement of intoxication and, of course, grappling with the complicated and nuanced definition of consent itself. The recent Human Rights Tribunal of Ontario decision in N.K. v. Botuik, 2020 HRTO 345, provides a useful illustration of another issue that we might encounter in an investigation that involves a sexual relationship between two employees: distinguishing coerced acquiescence from true consent.
Some of the more difficult cases of sexual harassment that we deal with as workplace investigators are what we call “borderline” cases — where the behaviour at issue straddles that line somewhere between unwelcome and simply misguided. What types of conduct in the workplace are serious enough to qualify as sexual harassment? A recent decision of the British Columbia Human Rights Tribunal, Prosko v. The District of Taylor and another, highlights some of the challenges these types of cases present.
Recently the Ontario Court of Appeal released its decision in R. v. Sullivan, a case involving the automatism defence. For those who don’t know, this defence can potentially be raised when an individual enters a state of impaired consciousness in which they are capable of acting but have no voluntary control over those actions¹. Through amendments to the Criminal Code of Canada in the mid-90s, the defence of automatism cannot be used for violent offences when the automatism is brought on by self-induced intoxication.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
2020 will see important shifts in how employers in federally-regulated industries prevent and address workplace harassment and violence. New rules will soon come into effect that will increase employers’ responsibilities to respond to incidents of harassment and violence, and also prevent any such incidents from occurring. I will be writing a series of blogs about these requirements so that employers and investigators can better prepare for what’s coming.
Time and again we see a familiar story play out in the media and in our work as workplace investigators: troubling behaviour on the part of one or more employees that many other employees witnessed, but never reported to anyone. This is one of the most vexing problems those of us who care about addressing and preventing workplace harassment and discrimination face: why do so many people see or hear about inappropriate behaviour in the workplace and remain silent? And how can we motivate these witnesses – who we refer to as bystanders – to speak up?
There’s a crispness in the air that reminds me that winter is just around the corner. At the risk of being “that person,” I love this season; sitting by a crackling fire with my family and a cup of tea is what I consider perfection. Like me, some human resources departments are also gearing up for their end-of-year gatherings – apparently, office holiday parties are back in style.
In 2018, the Ontario human rights tribunal case A.B. v Joe Singer Shoes Limited received a lot of attention because of its high damages award – $200,000 for the Applicant’s pain and suffering from of over 20 years of sexual harassment by her boss, Mr. Singer. But when Mr. Singer sought judicial review of this decision, it was not the quantum of the damages that was at issue; it was the Vice-Chair’s assessment of the parties’ credibility. Since this was a “he said, she said” case – there were no direct witnesses to Mr. Singer’s conduct – the Vice-Chair determined that Mr. Singer had engaged in sexual harassment, even though he denied doing so, because she believed the Applicant (Ms. B.) and did not believe Mr. Singer.