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Human Rights (Ont) - Sexual Harassment. Metrolinx v. Amalgamated Transit Union, Local 1587
In Metrolinx v. Amalgamated Transit Union, Local 1587 (Div Court, 2024) the Divisional Court allowed a Crown employer's JR against the decision of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act, here regarding human rights issues.
Here the court addresses workplace/sexual harassment::[46] In the present case, the Arbitrator’s reasons, read as a whole, fail to recognize that while some victims of workplace harassment are reluctant to report harassment or participate in the resulting investigation, their employer remains obligated to investigate such behaviour and to protect the workplace from a hostile or demeaning work environment.
[47] The Arbitrator’s conclusion that “When Ms. A declined to file a complaint of sexual harassment ... and no other active employee would, that also should have been the end of the matter”, is wrong in law, and indicative of his approach to the issue before him. It is not an isolated misstep, but permeates his reasoning throughout.
[48] Section 10(1) of the Human Rights Code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
[49] The Code provides the following protection from harassment to employees:Harassment in employment
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment because of sex in workplaces
7(2) 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. [50] Similar protections are found in the Occupational Health and Safety Act which defines “workplace harassment” as including “workplace sexual harassment” and defines “workplace sexual harassment” as follows:“workplace sexual harassment” means,
(a) 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
(b) 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 [51] The alleged sexual harassment in this case would fall into category (a) of the definition of “workplace sexual harassment”. It was a “course of vexatious comment” that the Grievors ought reasonably to have known would be unwelcome. When it became known to Ms. A, it created a demeaning and offensive work environment that no employee should be compelled to endure.
[52] Sections 32.0.1 to 32.0.6 of the Occupational Health and Safety Act set out the employer’s obligations to establish, post and implement policies with respect to workplace harassment. Section 32.0.7 imposes specific duties on the employer to protect a worker from workplace harassment. It states:Duties re harassment
32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,
(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;
... [53] Significantly, s. 32.0.7(1)(a) imposes a duty on the employer to investigate both “incidents and complaints of workplace harassment”. The Ontario Labour Relations Board has confirmed that the terms “incidents” and “complaints” means that the Act contemplates an investigation of an incident even if it is not the subject matter of a complaint: E.S. Fox Limited v. A Director under the Occupational Health and Safety Act, 2020 CanLII 75931; [2020] O.L.R.B. Rep.579, at para. 75:Having regard to the use of the terms “incidents” and “complaints”, and relying on the plain and ordinary meanings of those terms, the Act contemplates investigations where there is an incident of workplace harassment. In other words, an incident of workplace harassment is, in and of itself, grounds for an investigation being carried. That incident can be, but does have to be, the subject of a complaint. [54] I agree with and adopt this conclusion, which is consistent with both the plain and ordinary meaning of those terms and s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which provides that “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
[55] An employer has an obligation to take steps to deal with harassment of employees once the harassment is known to the employer: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div.Ct.), at paras. 33, 35. While the Policy states that “the investigative process is initiated by a complaint”, the policy cannot limit the Employer’s legal obligation under the Occupational Health and Safety Act.
[56] Moreover, the Supreme Court of Canada has, for more than 30 years, been warning judges that it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault. In particular, a victim’s reluctance to report or complain about a sexual assault cannot be used to draw an adverse inference about her credibility: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, at paras. 63, 65; R. v. A.R.J.D., 2018 SCC 6, at para. 2.
[57] The conduct in this case was not a sexual assault, although courts have recognized that. “harassment with a physical component constitutes a form of sexual assault and is among the most serious form of workplace misconduct”: Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388, 439 D.L.R. (4th) 405, at para. 31, and cases cited therein.
[58] In Calgary (City), the Alberta Court of Appeal held, at para. 42, that while the Supreme Court’s statements about reliance on these types of presumptions and stereotypes were made in the context of criminal proceedings, “the caution about these types of errors should apply equally to arbitrators adjudicating sexual assault grievances” In my view, there is no reason to limit this caution to “sexual assault grievances”, the caution about these types of presumptions and stereotypes applies to all sexual harassment grievances.
[59] A victim’s reluctance to report or complain about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, the prospect of further humiliation, or just the hope that, if ignored, the demeaning comments or behaviours will stop. This is true whether or not the conduct rises to the level of assault.
[60] A victim’s reluctance to report or complain cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.
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[65] The Employer’s duty to investigate “incidents” as well as “complaints”, means that there was no conflict of interest in having the Employer investigate the incident in the absence of a complaint. The Employer did not become the complainant when it conducted the investigation, because no complainant was necessary.
[66] The Arbitrator’s conclusion that an Employer cannot investigate an incident if the victim is unwilling or afraid to complain is inconsistent with the employer’s obligations under the Occupational Health and Safety Act, and inconsistent with the reality of the workplace environment where employees may refuse to bring forward complaints against other employees for fear of reprisal or other consequences.
[67] Moreover, the Employer’s duty to investigate is not just a duty owed to the complainant, but a duty owed to all employees in the workplace. All employees – not just the direct victim of the comments – have a right to work in an environment that is free from demeaning and offensive comments.
[68] I also agree with the Applicant that the Arbitrator was too focused on the Grievors’ right to privacy. The fact is, whatever the Grievors’ intent, at least some of their comments came to the attention of Ms. A in the workplace. Given the nature of social media, and the fact that the number of employees who had access to the chat was not known, this was hardly surprising. The employees who participated in the chat were free to, and did, forward the message to other employees. Wherever it originated, the impugned conduct made its way into the workplace and, to that extent at least, became a workplace issue.
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[72] This Court has confirmed that “not every case of sexual harassment or assault demands a discharge. There are cases where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum and the grievor has demonstrated remorse for his behaviour.”: Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725, at para. 21.
[73] See also: Ontario Power Generation v. The Society of United Professionals, 2020 ONSC 7824, at para. 38:If we were to accept OPG’s arguments on this application, all findings of sexual harassment, regardless of the nature of the conduct, would warrant termination. This cannot be the case. Ultimately, it is up to the arbitrator to consider the specific conduct in each case and decide whether termination or a lesser penalty is appropriate in the circumstances.
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