November 25, 2021, marks International Day for the Elimination of Violence Against Women. As workplace investigators, we know all too well that gender-based violence and harassment is a live issue, the impacts of which can be devastating on the survivor, their loved ones, and the workplace more broadly.
In a recent Provincial Court of Alberta decision, Dupont v. Ag Growth International Inc. (AGI-Westeel), 2021 ABPC 118, the trial judge ruled that just cause termination was a disproportionate measure following a workplace investigation where the dismissed employee was found to have sexually harassed a female colleague. The employer subsequently appealed this decision to the Alberta Court of Queen’s Bench, who allowed the appeal.
You may have seen the news recently about New York Governor Andrew Cuomo’s resignation, following an investigation that concluded that he sexually harassed 11 women from 2013 to 2020. Investigators interviewed 179 people and ultimately found a pattern of unwanted touching and sexually suggestive and inappropriate comments towards staff, State employees and members of the public.
It is September and back to school time, including back to the physical campus after more than one year of virtual learning. I imagine that most students are looking forward to being back on campus, or attending campus for the first time. It is an exciting time, yet…
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.
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.
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.
In the last two years, “I believe women” has become a frequent comment in discussions about sexual harassment and sexual violence. It’s an important one, given the negative experience that many women have had when trying to report sexual abuse, including low conviction rates for perpetrators and a feeling that their stories were not heard.