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The first step in any new investigation is to review the workplace harassment policy. As both an investigator and someone who has written workplace harassment policies, I sometimes find myself sighing deeply as I conduct this review, knowing that some parts of the policy are going to make the investigation process harder – not only for me, but for the parties and the employer as well.
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.
In a recent decision of the Human Rights Tribunal of Ontario [AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499 (CanLII)], the Tribunal highlighted how an inadequate and unreasonable internal workplace investigation by an employer could result in a breach of the Human Rights Code R.S.O. 1990, c. H.19 (Code).
In Ontario, where I work, we have just entered stage 2 of re-opening the economy, which includes allowing people to return to workplaces that have thus far been closed. Even if a business was deemed essential, and employees continued to work remotely, now that things are “thawing” we anticipate that more employees will return to the physical workplace.
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.
I recently watched a video presentation by Kain Ramsay, teacher of applied psychology, on the topic of perceptual variances in the context of cognitive behavioural therapy. He started the presentation with a demonstration. He showed how the number “8” could be interpreted or perceived differently by multiple persons. He demonstrated that the image could be viewed by some as exactly what it is, the number 8. Others may interpret it as the infinity sign; to others it may just look like a pretzel; while to another person, it may be the symbol for DNA.
We have all heard of the myth of Pandora’s Box – a box containing many evils that once released into the world could not be put back. As a third-party workplace investigator, I often think of clients having a Pandora’s Box full of information that, if released, could be prejudicial and could lead to an eventual claim of bias.
