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Sometimes a comment is just a comment: Making out a prima facie case of discrimination or harassment

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Standards of appropriate workplace behaviour have rapidly changed over the last few years, and conduct that was once deemed acceptable is no longer tolerated in the workplace. But as the following arbitration decision demonstrates, one fundamental requirement still remains: the need to demonstrate a prima facie case of discrimination or harassment before the obligation to investigate a complaint is triggered.

Simply put, a prima facie case requires establishing that a complainant’s allegations, if true on their face, amount to discrimination or harassment.¹

Case Summary

In OPSEU (Solomon Smith et al) v Ontario (Children, Community and Social Services),² an employee filed a grievance alleging workplace harassment by her supervisor under the OPSEU collective agreement.

The definition of workplace harassment under the collective agreement was similar to that of the Occupational Health and Safety Act. Workplace harassment was defined as “a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.”

At the arbitration, the employer moved to dismiss the complaint, stating that the employee had failed to demonstrate a prima facie case of harassment.

The specific allegations arose from the following incidents:

1. During a meeting between the grievor and her supervisor, they expressed a difference of opinion regarding the planning of a “Take Your Kid to Work Day” (TYKWD) event, including whether parents could be in attendance. The supervisor mentioned that she would check with another supervisor about the matter, and that things were done differently when she managed another department. The grievor advised her that regardless of what another department had done, she and her son would attend the event together. The supervisor asked the grievor if everything was okay, and the grievor replied that it was not.

The grievor characterized the questions her supervisor asked her as “intrusive” and argued that the supervisor had actively tried to prevent her from attending the event.

2. The grievor further alleged that her supervisor made innuendos by commenting multiple times that something “smelled” near the grievor’s cubicle. The supervisor also plugged in an air purifier near the grievor’s work area, which attracted attention from her colleagues and left the grievor feeling embarrassed.

3. Lastly, the grievor requested religious observance days, to which the supervisor inquired which “holiday” the grievor’s observance was respecting. A few months later, the grievor requested a religious observance day for Hanukkah, and her supervisor referred to it as “candle lighting day.”

The grievor believed that the supervisor’s use of the word “holiday” trivialized her religious observance, and that it was disrespectful for her supervisor to refer to Hanukkah as “candle lighting day.”

The union alleged that the above-noted incidents formed a course of conduct amounting to workplace harassment, due to the combined effect of the intrusive questioning, innuendos regarding odours and “serious insensitivity” regarding the grievor’s religious observances.

For the following reasons, the arbitrator dismissed the grievance, stating that the incidents did not make out a prima facie case of harassment or discrimination.

First Incident

The arbitrator found that asking the grievor whether she was okay was entirely reasonable given the context of their discussion about the TYKWD event, and could not be characterized as intrusive. The arbitrator further found that there was no objective basis for determining that the supervisor was attempting to prevent the grievor from attending the event, as alleged.

Second Incident

The arbitrator found that it could not be inferred that the comments about the smell were somehow associated with or directed to the grievor. He further stated that simply plugging in an air purifier near the grievor’s work area, and the grievor’s feeling of embarrassment, did not serve as sufficient evidence of harassment.

Third Incident

The arbitrator stated that there was “no plausible, objective basis on which the supervisor’s comments about the grievor’s religious observances could be considered harassment.” He further stated that the fact that there were religious references in the comments did not make them discriminatory, impede the grievor’s ability to participate in the workplace with dignity, or otherwise negatively impact her work environment. Notably, the arbitrator added, “To suggest otherwise trivializes the concept of discrimination.” ³

Guiding Principles

In the case, the arbitrator outlined the following principles to be considered when determining whether a complaint meets the prima facie case for discrimination or harassment:

[8] …Assuming the facts alleged by the complainant are true and capable of proof, do they describe conduct which, in the absence of evidence to the contrary, support as a possible inference discriminatory motivation on the part of the persons engaged in that conduct?

[14] …The question is not whether a complainant believed she was the subject of bullying or harassment.  The question is whether a reasonable person, informed of all relevant facts, would conclude the impugned behaviour would constitute harassment or bullying if the perpetrator knew or ought reasonably to have known that it was unwelcome

Arbitrators in similar cases have further noted that not every comment that is linked to a protected ground will contravene the Human Rights Code,4 and that a harassment process should not be used to “vent feelings of minor discontent or general unhappiness with life in the workplace.” 5

What does this mean for workplace investigators?

Taking into account the above, workplace investigators and organizations in receipt of workplace complaints should consider, “If true, would these allegations amount to discrimination or harassment?” In answering this question, it may be beneficial to review your organization’s workplace harassment and/or discrimination policy and applicable legislation to determine the standard required to establish these types of behaviour.

It may be that even if true, certain allegations, would not reasonably amount to either discrimination or harassment, and that such behaviour could be better addressed through other avenues apart from a workplace investigation.


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Ontario (Human Rights Commission) v Simpsons-Sears Ltd, [1985] 2 SCR 536 at para 28.

2019 CanLII 126475 (ON GSB).

At para 27.

Brito v Affordable Housing Societies and another, 2017 BCHRT 270 at para 41.

UFCW Local 1518 v 55369 BC Ltd, 2007 Carswell BC 3880 at para 34; cited with approval in OPSEU (Cross et al.) v Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 60421 (ON GSB), at para 46.