D THE STATUTORY PROCESS

D THE STATUTORY PROCESS

General Principles of Interpretation

The well-accepted mode of interpretation is to allow for a “fair, large and liberal interpretation”¹ of human rights statutes, given the inherent remedial intent and “the special nature and purpose”² of such legislation. Human rights legislation has been described as “not quite constitutional, but certainly more than ordinary”³. Such legislation is not to be interpreted “on a strictly grammatical analysis”. ⁴ Such quasi-constitutional statutes must be read contextually.⁵

Limitation Period

The limitation period is very important. The time to commence a claim varies from jurisdiction to jurisdiction. Some statutes allow for an extension of the stated time period, usually conditioned by a requirement that the delay was incurred in good faith and that the employer will suffer no prejudice.

B.C., at one time, had shortest limitation period of 6 months. It has recently been amended to 12 months. It also allows for an extension where in the public interest and no prejudice is shown. Nunavut is similar although the period is set at 2 years and also allows an extension where the delay was occasioned in good faith and again no prejudice has been suffered.

Manitoba sets a 1 year proscription period and allows for a similar extension where there is no prejudice and it is an individual who seeks the extra time and not the Commission.⁶

New Brunswick allows for a 1 year period and a general discretion to extend without any set guidelines on the face of the statute, as does Saskatchewan.

P.E.I. fixes a 1 year absolute period, as does Newfoundland and Alberta. Quebec’s Charter requires the case be commenced within 2 years and similarly there is no provision for an extension.

Nova Scotia and Ontario set a 1 year period and each allow for extensions where there is no prejudice. Ontario requires the applicant to also show good faith. N.W.T. has a 2 year period with extensions available on the same terms as Ontario, which is the same law as the Yukon, apart from the set time period which is 18 months.

The federal law sets the filing period as 1 year and allows for a residual discretion to extend this time period.

The issue will arise as to when the limitation clock starts. In sexual harassment cases, the question often arises as to whether there was a “series of events” which had occurred. If such is the case, and the last of such events is timely, this will allow the entire history of past conduct to be admitted as part of the complaint.

The test is whether the questioned conduct fits a pattern of similar behaviour, as opposed to the converse of a series of discrete and separate issues. ⁷; ⁸

The Workplace

To establish a code violation, there must be an employment relationship to support a sexual harassment complaint.

For a sexual harassment complaint to be in an employment context, there must be a definition of what types of working relationships may be covered. For example, would a business relationship such as a contractor-principal be covered?

Secondly, presuming that the nature of the relationship is one that falls within the rubric of employment, what type of conduct would then be caught? Must it be confined to the physical premises, or take place within working hours?⁹

Statutory Definition Lacking

There typically is not a conclusive definition in the relevant human rights statute setting out what is or is not employment. It is the jurisprudence of the human rights tribunals and the civil courts which offer interpretation of the term “employment”.

B.C.’s Human Rights Code, for example, does not define employment but does state that this term includes “the relationship of master and servant, master and apprentice and principal and agent, if a substantial part of the agent’s services relate to the affairs of one principal”.

Similarly, Nova Scotia’s statute states that an “employer includes a person who contracts with a person for services to be performed by that person or wholly or partly by another person”.

P.E.I.’s Human Rights Act has a similar provision, as does that of the North West Territories.

Alberta’s Human Rights Act offers no definition or even such an inclusionary provision, as does the equivalent statute in Ontario.

Common Law Test

The first step in the determination of whether there may exist an employment relationship is to apply the common law test.¹⁰ The burden is upon the applicant to prove jurisdiction.

The leading case on this subject is the Supreme Court of Canada decision in 671122 Ontario Ltd. v Sagaz,¹¹ in which the Court concluded that although there was no direct path to the answer, the accepted popular test was set out as below:¹²

The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.¹³

Human Rights – A More Expansive View

Should the application of this common law test not show an employment relationship, then regard must be had to the principle that a “purposive, functional approach to determining the test of employment” ¹⁴ must be used to determine the jurisdiction of the human rights statute. ¹⁵

Accordingly, the jurisdiction of the human rights tribunal will not be limited to purely a common law employment relationship but rather will include more than the traditional employer-employee relationship ¹⁶, which is reflective of the broad purposive interpretation required for this remedial legislation. ¹⁷

A good example of this principle is shown by the conclusion that the use of a management corporation by which the applicant has been paid was not been successful in depriving the tribunal of jurisdiction. ¹⁸ A similar reflection of this view was found in one case in which a taxi cab brokerage company was found to be covered by the Ontario code in its dealings with the owner of a taxi licence seeking a brokerage company for his licence.¹⁹

The test, as noted by the Supreme Court, is essentially one of control and dependency. ²⁰ The real issue is whether “the employer” is in a position to “remedy any discrimination” and hence whether it “controls working conditions and remuneration” ²¹ which has created a consequential dependency on the part of the employee.

Findings which have been made of employment or otherwise for other legal purposes have been held not to be binding upon the human rights tribunal. ²²

“Sufficient Employment Connection”

The Supreme Court of Canada again considered this issue of jurisdiction in a complaint made against a worker of a company, which entity was not the complainant’s direct employer.

S-M worked for a company, Omega and Associates, as a civil engineer on a construction project. Omega was responsible for the oversight of the primary construction general contractor, known as Clemas. One of the employees of Clemas was Schrenk.

S-M accused Schrenk of certain racist and homophobic comments, resulting in S-M making this human rights complaint against him.

Schrenk moved unsuccessfully to strike the complaint before the B.C. Human Rights Tribunal which was followed by an unsuccessful judicial review application. This, in turn, was appealed to the Court of Appeal which sided with Schrenk. The case was then appealed to the Supreme Court of Canada which reinstated the application.

The case then considered this issue of jurisdiction and whether the claim was caught by the employment definition within the statute.

The submission made by Schrenk was that he was not the employer of S-M, nor was he, his superior in the workplace.

The majority decision held that the purpose of the Code was “not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, its protections extends to all employees who suffer discrimination with a sufficient connection to their employment context.”

This interpretation was broad enough to encompass adverse conduct by a co-worker, even such a co-worker with a different employer.

The decision noted that human rights laws generally are given a broad and liberal interpretation to allow the fundamental rights to be achieved in society. Indeed it reinforced the view that human rights statutes are quasi-constitutional in nature which hence allows for a “generous interpretation to permit the achievement of its broad political purposes”.

The operative wording of the B.C. Code forbade adverse treatment against a person “regarding employment”. The opening words addressed the issue of such adverse treatment by “a person”, which was read to include a person beyond one with economic authority over the complainant.

These words were seen as prohibiting discriminatory conduct which targeted employees as long as there is a “sufficient nexus between the discrimination and the employment context”.

The test for such a finding will include a review of the following factors:

1. Was the respondent integral to the workplace of the complainant;
2. Did the questioned conduct take place in the workplace;
3. Was the complainant’s work performance or work environment negatively effect.

Partnership Issues

The Supreme Court of Canada considered this issue resulting from a complaint made by an equity partner in a large law firm based in Vancouver. The partnership agreement required such a person to resign as an equity partner at the end of the calendar year in which they became age 65.

The law firm moved unsuccessfully, initially, to strike the complaint due to lack of jurisdiction based on the submission that the applicant was a partner and not an employee. This decision was set aside by the B.C. Court of Appeal and was upheld in turn by the Supreme Court.

The issue hence presented was whether the facts allowed, in this case, an equity partner to be regarded as an employee for purposes of the Code.

The Court of Appeal had concluded that a partner could never be considered, for this purpose, an employee, a position with which the Supreme Court disagreed, notwithstanding that in this instance, it found that there was no employment status.

The critical issue for the determination of employee status, the Court concluded, was “the degree of control and dependency”. The essential question used in this test is “whether the employer controls working conditions and remuneration, resulting in dependency on the part of the employee”.

The majority stated:

Control and dependency, in other words, are a function not only of whether the worker receives immediate direction from, or is affected by the decisions of others, but also whether he or she has the ability to influence decisions that critically affect his or her working life. The answers to these questions represent the compass for determining the true nature of the relationship.

As to the  issue of a partnership itself, the Court noted that the control over the workplace conditions and remuneration rests with the partners and hence, “in most cases”, the partners will not be regarded as employees.

This being said, the decision maker should provide a functional review of the true factual foundation of the relationship. While the applicant here was found factually to have been “someone in control of, rather than subject to, decisions about workplace conditions” and hence not an employee, this will not necessarily follow in every situation as  it will not follow “form should trump substance”.

The Court parenthetically noted that partners still by statute owe a duty of “utmost fairness and good faith” to one another which may in another context raise the issue of discriminatory conduct as actionable.

Section 3 of the Ontario Code

Ontario’s Code contains as provision which states as follows:

Contracts

1. 3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. [1981, c.53, s.3; 1986, c.64, s.18(3).]

B.C’s Code does not contain this provision.

This provision would very likely allow for jurisdiction to challenge a similar contractual agreement in Ontario. Saskatchewan is the sole other jurisdiction with a comparable term in its human rights statute.

Did the Conduct Take Place Within the “Employment” Relationship?

Apart from the finding of whether or not the relationship is one under the jurisdiction of the relevant statute, the next issue which frequently arises is whether the questioned conduct is within the context of an employment relationship. Not surprisingly, often conduct which is alleged to be sexual in nature occurs outside of the physical confines of the office or work environment and also often beyond normal working hours.

The cases which follow deal with essentially fact finding endeavours to determine whether conduct which was external to the work environment in geography or time may nonetheless be work related.

Apart from the analysis of these cases, which clearly advocates a broad liberal approach to the question, any threats of adverse workplace consequences, or conversely positive employment-related rewards based on sexual advances, no matter where such events may occur, are most assuredly within the jurisdiction of the tribunal. ²³

The Ontario Court of Appeal in Simpson v Consumers Association of Canada²⁴ dealt with the issue of conduct which did not take place in the immediate workplace, but rather in settings beyond the physical premises of the office.

This was not a human rights complaint but a civil lawsuit brought by Mr. Simpson against his employer who had terminated him because of allegations of sexual harassment. Mr. Simpson was not only successful at trial, but ironically was also awarded incremental damages for unfair conduct.

CAC appealed successfully. One of the issues considered by the Court of Appeal was the impact of the finding that certain of the alleged events of misconduct took place at locations external to the office premises as the employer was required to prove workplace misconduct.

Three of the occasions alleged against the plaintiff took place at company meetings or retreats held at hotels which business meetings, yet with a social component, were held. The fact that such events occurred after the completion of business meetings did not mean, the Court determined, that such conduct was outside the workplace and hence external to the employment context.

This conclusion that such events were work-related may have been seen to be predictable, but the events which took place at the plaintiff’s cottage raised a different dimension. Again, the context was seen as work related. Staff had been present at the cottage because the plaintiff was on vacation and his advice was required on certain timely issues. Following the work assignment, the staff were invited to remain and recreate.

Notably the Court of Appeal overturned the trial judge on this issue:

It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact. In this case, the trial judge erred by making an overall finding without considering the individual circumstances of each incident.

The moral of the story is that a work relationship is not one confined to the office or business premises, but rather a broad contextual view must be applied to determine whether there is an employment connection to the event. ²⁵

A similar conclusion was reached in a human rights context in which the alleged offensive conduct took place at a firm retreat in South Carolina, ²⁶ which was considered to be a team building event.

To the same effect was the finding in a civil trial in the context of an after-event party in a hotel room, which was owned by the employer, attended by employees and spouses, ²⁷ and a barbeque where social aspects of the event were seen as work-related ²⁸, as, in part, the event was seen as a celebration of the progress of the employer.

Essentially the decision maker will undertake a fact finding analysis to determine if the questioned conduct was in the context of an employment relationship, even though it may have occurred off hours and outside the physical boundaries of the workplace setting.

Email messages, twitter and Facebook accounts or other internet postings will face such a test. There is no reason why such comments made in cyberspace could not fit into the category of workplace communications ²⁹in the appropriate context.

The decision of the Tribunal in S.S.v Taylor (Flaherty) noted that while some of the events took place outside the business premises of the restaurant, that nonetheless, they were “sufficiently connected” to the workplace to allow for jurisdiction.

More importantly, the decision spoke to the issue that such comments made by the respondent “had job-related consequences” for the applicant:Importantly, all of the incidents, regardless of where they occurred, had job-related consequences for the applicant. Perhaps the clearest example of this is the applicant’s evidence that could not face returning to work at the Restaurant knowing that her boss and some of her co-workers had thought and talked about her as described in the voicemail message.

The conclusion that “work-related consequences” as the sole factor would allow for jurisdiction appears excessive. If so, any exchange between two people, where ever this may take place, who happen to have the same employer, would give rise to jurisdiction. This factor ought not to suffice as a stand-alone test.

A similar fact based analysis was undertaken in the decision of the Canadian Human Rights Tribunal (Theberge, Dionne and Jakhu) in the December 1992 case of Cluff v Department of Agriculture, in this case finding that there was no activity which took place in the course of the employment relationship and hence declined jurisdiction.

The complainant had alleged that the personal respondent had sexually harassed her at the annual conference organized by her for the Eastern Canada Farm Writers Association. The complainant was then employed by the Department as an information officer, while the personal respondent held the position of program officer. The event was not an employer function but was nonetheless work related.

The complainant’s prime responsibility was the preparation of radio programmes. It was with the approval and support of her employer that she became active on the executive of the ECFWA. Her participation at the conference was agreed to be during normal working hours. Her registration fee for the conference was paid by the employer.

The questioned events took place at the hospitality suite arranged for the conference.Adjoining the suite was a bedroom portion which was separated from the remaining area by an archway, as opposed to a locked door.

The events of the evening affair commenced at 9 pm in the hospitality suite. By 2 am, the complainant was alone in the suite accompanied by the personal respondent, also an employee of the Department and senior to her in responsibility and another male person unrelated to the employer. It was between 2 and 3 am that the alleged event of sexual harassment took place.

The following test was adopted for the purpose of determining whether the alleged harassment took place “in the course of employment” and/or “in matters relating to employment”:

An employee is in the course of employment when, within the period covered by the employment, he or she is carrying out:

1. Activities which he or she might normally or reasonably do or be specifically authorised to do while so employed;
2. Activities which fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it;
3. Activities in furtherance of duties he or she owes to his or her employer; or
4. Activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.

The Tribunal concluded (as referenced in the Federal Court decision):

An employee is still in the course of employment when he or she is carrying out intentionally or unintentionally, authorised or unauthorised, with or without the approval of his or her employer, activities which are discriminatory under the CHRA and are in some way related or associated with the employment. However, an employee is considered to have deviated from the course of his or her employment when engaged in those activities which are not related to his or her employment or are personal in nature.

On the facts of the case, it was determined that the complainant’s role in the conference was not one which was mandated as an employment term with the Department which had no control or power over the ECFWA. The attendance of the personal respondent was also not related to his employment. For these reasons, the panel declined jurisdiction.

The decision was reviewed in 1993 by Gibson J. of the Federal Court, who upheld the decision, but for differing reasons which are of significance to the analysis. The Federal Court, in applying the standard of correctness, agreed with the four fold test set out by the Tribunal, noting that these factors are disjunctive.

The Federal Court disagreed with the conclusion that the activities in question were not “in the course of employment” as the first two tests were each met.

The Court concluded, in essence, that once the hospitality suite closed, so did the employment relationship which ended the day for employer liability. Gibson J. stated:

At some time during the night in question, before 2:00 a.m. and at or shortly after the time the hospitality suite effectively closed, the complainant ceased to be in the course of employment or engaged in matters related to employment. To conclude otherwise would place an intolerable burden of responsibility on employers of those who travel in the course of their employment and of those who attend conferences and the like on behalf of their employer.

The issue then being determined was the existence of an employment relationship at the time of the assault. Liability would not necessarily have followed as the federal Code contained a due diligence defence to the employer liability, ³⁰ an issue which was not reviewed. The Court concluded that liability would have automatically followed, which was not correct.

It is difficult to countenance the reasoning that had the harassment occurred during the currency of the social event, apparently an employment relationship would be found, yet an event which took place later in the evening failed to be caught by the relationship which brought her to the evening itself. This decision stands at odds with the reasoning of the British Columbia and Ontario Court of Appeal referenced above and that of the definition of “job-related consequences” set out in S.S. v Taylor.

The test set out by the Federal Court has had a questionable reception. It has been largely ignored in most jurisdictions, yet remains the accepted standard in the Alberta human rights tribunal decisions ³¹ and the federal human rights tribunal.

The Role of the Human Rights Commission

The status of the body known as the “Human Rights Commission” can be confusing. In all jurisdictions, apart from those that have implemented the direct user access system, the case starts by the complainant contacting the human rights commission, which investigates the allegation and initiates the case, often with the individual also as a party.

The jurisdictions with the “direct user access” system, by which the complaint process is started by the individual complainant, without the investigation of a human rights commission, are Ontario, B.C. and Nunavut.

In Ontario, the human rights commission usually is not a party to the case. It acts as an advisory body to the public and in cases of wide scale public interest or one involving an important legal issue, may seek to add itself as a party to the case. Typically the complainant is shown as the only party initiating the case. The applicant is a distinct and separate party at the hearing before the Tribunal. He or she has the right to participate and may take positions that are different from those expressed by the Commission, should it decide to seek an order to add itself to the case. ³²

British Columbia re-introduced the human rights commission in November of 2018. It will take effect in November of 2019. It will be similar in substance to that of Ontario.

Nunavut remains the sole jurisdiction which does not have a body known as a human rights commission.

The tribunal which hears the case is referred to as a human rights panel, board, tribunal or board of inquiry.

In Alberta, the complainant is a party, as also is the Director of the Human Rights Commission in every case. Saskatchewan follows the same process, as does Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland& Labrador.

Quebec’s Charter of Rights and Freedoms allows the Commission to have carriage of the case. Should it decide not to pursue the claim, the individual may continue the case on his or her initiative.

The statute of the Yukon is a hybrid, incorporating elements of both systems. The user files the complaint and the Human Rights Commission then investigates the merits of the action. The Commission may advocate the position of either adverse party at the hearing before the panel, which is a welcomed novel approach.

The law of the North West Territories permits the complainant to commence the complaint or the Commission, in which latter case it is a party. The Commission may also advise the panel in which event it is also a party.

Naming Personal Respondents & Employer Liability

The issue of whom should be added in a human rights complaint for sexual harassment is regrettably complicated. The answer to this question depends very much on the statute of the relevant jurisdiction and also the nature of the remedy which is sought.

Remedy Specific Analysis

There are different types of remedies which may be sought in a claim which has emanated from conduct which is sexual harassment. The first is a pure claim alleging such abusive conduct. The second is more general complaint by which the applicant asserts the existence of a poisoned work environment and/or reprisal due to the filing of a complaint. The type of relief sought will have an impact on the question of whom should be added as a respondent.

Pure Sexual Harassment Case

In a pure sexual harassment complaint, the initial view often presumes that the employer has liability. This need not be so in many jurisdictions, as set out below. Many statutes allow for an employer “due diligence” defence. Ontario’s code creates for most human rights violations deemed employer liability but denies its application to a sexual harassment case.

The liability of the corporate employer in a human rights administrative process presents real difficulties for the applicant in a sexual harassment complaint.The individuals who are responsible for the offensive conduct must be named in the proceeding as respondents.

The employer in most cases should nonetheless be also named as a respondent. Any apparently related companies that may be involved in the business should also be named.

Presumption Where No Statutory Definition

The principle of vicarious liability will generally mean that the employer is legally responsible for the acts of its employees which take place in the course of employment. Most human rights statutes deem that the company is responsible for the actions of its employees, officers and directors in that circumstance. Absent such a provision in the relevant statute, the leading case on this subject has also determined that the employer should be responsible for human rights violations of its employees in the course of employment. ³³

There are, however, some important exceptions to this concept.

Statutory Interventions

Many jurisdictions by the relevant legislation have amended the principle by which an employer has been determined to be responsible for the actions of its employees, as described below.

Ontario’s statute ³⁴has a deeming provision holding an employer responsible for the conduct of its officer, official, employee or agent in the course of their employment.

This provision, however, does not apply to freedom from harassment in the workplace ³⁵, sexual harassment in the workplace, ³⁶ and sexual solicitation and freedom from reprisal connected to sexual solicitation.

There, hence, is no deemed liability upon the employer for wrongdoings under these remedy sections.

Thus, under the Ontario Code, the deeming provision holding the employer responsible for the acts of its employees, agents or officers, does not apply to sexual harassment. Such a complaint must be brought personally against the individual who is accused of the offensive conduct. ³⁷

B.C. does not have such a statutory provision. Accordingly the relevant law is the common law by which the employer is responsible, in a human rights context, for all acts of its employees committed in the course of the employment relationship. ³⁸

The law is the same as in B.C. in Saskatchewan, Nova Scotia, PEI, Newfoundland & Labrador, NWT, Nunavut and Quebec.

Other jurisdictions have allowed the employer what is essentially a “due diligence” defence to the complaint.

Manitoba has enacted legislation which defines the concept of employer liability for the acts of its employees. Provided that the conduct was in the course of employment, the employer is deemed responsible. The employer may, however, show a defence by proving (1) it did not consent to the conduct and (2) took all reasonable steps to prevent it and (3) then took all reasonable steps to minimize or avoid the effect of the offensive actions.

The substance of this provision is repeated in the legislation of the Yukon.

New Brunswick has similar legislation with respect to a complaint of sexual harassment, which deems the actions of the employee to be those of the employer, and then allows the employer a defence of showing it used due diligence to prevent such conduc ³⁹

Essentially the federal legislation now allows for a “due diligence” defence to be raised against the assertion of vicarious liability. The employer must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent event and (3) did all it could to minimize or avoid the adverse consequences.

This does not, however, end the analysis of employer liability, again to a complaint of pure sexual harassment.

Controlling Mind

This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply.

This is essentially what New Brunswick codified in its legislation. There is no need, however, for the relevant statute to state such a principle.

The persons who act as the “directing mind” of the corporation will not only allow for the liability of the corporation for their actions, ⁴⁰ but will also attract personal liability ⁴¹ This is true for all administrative jurisdictions and, indeed, in a comparable common law claim in tort.

Other Aspects of Employer Liability due to Sexual Harassment

This does not close the subject of employer liability under the relevant human rights statute due to a sexual harassment allegation.

Firstly, there may be liability under the Ontario statute for a failure to investigate the complaint. It may suffice to say presently that the human rights remedy is uncertain in Ontario as to whether there is direct liability on the employer ⁴² under the statute for such a failing ⁴³ No other jurisdictions in Canada have imposed direct employer liability on a failure to investigate a human rights assertion independently of the substantive issue.⁴⁴

The remaining jurisdictions in Canada do not follow the Ontario model on this issue of reprisal due to sexual solicitation.⁴⁵ As noted above, most jurisdictions⁴⁶ use the common law interpretation of employer liability⁴⁷ for which such conduct, the employer would face liability. Other jurisdictions make conduct which is retaliatory to a refusal to comply with a sexual advance part of the definition of sexual harassment⁴⁸ and then apply the relevant law on this subject to determine employer liability.⁴⁹

A complainant for a general reprisal remedy stands alone.⁵⁰ Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and she was the subject of adverse treatment or the threat of as a result.⁵¹ The applicant in such a case simply must show that rights under the code were claimed and she was then the subject of threats of, or actual adverse consequences.

Unlike a complaint of adverse discriminatory conduct which does not require proof of intent,⁵² a claim of general reprisal requires proof that the action or threat was indeed intended as a retaliation to the claim to or enforcement of a right under the Code.

A claim of general reprisal requires proof that the action or threat was indeed intended as a retaliation to the claim to or enforcement of a right under the Code.

Such intent may be inferred from circumstantial evidence,⁵³ but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights.⁵⁴

Reprisal is discussed in more detail subsequently.

The remains a third possibility of employer liability for a sexual harassment allegation due to the existence of a “poisoned work environment”.⁵⁵ This liability is not exempted from the deeming provisions of the Ontario Code. Management employees who fail to take remedial action to eliminate such a work environment and the corporation may both be liable for a breach of this obligation.⁵⁶ In essence, a company which has failed to deal with Code violations prevalent in the workplace will take on this liability due to its failure to assure a proper and safe workplace.

Proving the case

The law on this subject evolved in an era⁵⁷ in which it was necessary to prove the intent of the wrongdoer. Due to the inherent difficulty in so doing, two important human rights interpretative principles developed.

The first was the need to prove a prima facie case, which then put to the respondent the need to call evidence. The second principle was that of reasonable inference from circumstantial evidence.

While the need to prove motive has long gone, these two concepts have remained firmly entrenched.

Prima Facie Case

The legal test for the establishment of a prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer”.⁵⁸

The establishment of a prima facie case is one which requires credible evidence to prove the case, and hence a respondent faced with such a prima facie case at the end of the claimant’s case must call evidence to avoid an adverse finding.⁵⁹ “Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing”.⁶⁰

Once this test of a prima facie case is made, the burden of proof then shifts to the respondent to provide a reasonable explanation for the behaviour, one which shows that there was some other reasonable credible explanation for its conduct.

If the respondent provides such an explanation, the complainant then has the ultimate burden of showing that the alleged offensive discriminatory behaviour is more probable from the evidence than the defence offered. It is in this sense that the burden which shifts is one of evidence,⁶¹not onus.⁶²The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.⁶³

Proof by Inference

In discrimination cases generally, the case is proven by inference from circumstantial evidence. Relatively “little affirmative evidence” is required in such cases for the inference to be allowed.⁶⁴ The standard of proof requires “only that the inference be more probable than not.^{65 66} This is so as in human rights cases, there is very rarely direct evidence proving a human rights violation.⁶⁷ It is the task of the tribunal to view all of the circumstances to determine if there exists “subtle scent of discrimination”.⁶⁸

It has been long recognized that a victim of sexual harassment may be compromised and hence an immediate complaint may always not be forthcoming. This need not be a bar to a finding of liability.⁶⁹ Due to the inherent power imbalance, an employee may well not raise immediate objections.⁷⁰ This reflects the victim’s economic dependent vulnerability.⁷¹ As is the case with all evidence, the decision maker must assess credibility and determine if the offered explanation for a delayed complaint or no complaint makes sense. In one example, the Tribunal did not believe the professed reason for delay as the complainant had proven herself quite able to assert herself over other employment concerns.⁷²

An Influential Factor – No Intent Required

Generally, in a human rights complaint, the offensive conduct need not be malicious and further need only be a factor propelling the conduct in question. It need not be the sole cause.

The decision maker need not look for a motivator for the alleged offensive action. It is not an exercise in determining whether the alleged adverse treatment took place because of a code violation but rather was influenced by a code violation.

As was noted by the Divisional Court,⁷³ this line of questioning⁷⁴ reflects a “common myth” that the quest is one to determine whether the employer was intent to terminate based on a code protected value.

As was the case with the need to prove but a prima facie case and proof by reasonable inference through circumstantial evidence, the origin of this principle came from an interpretation of labour relations issues, in this instance, whether the termination of a person was due to union membership.⁷⁵

Intent for Reprisal

However, in certain cases intent of the wrongdoer is relevant. Such is the case in a termination allegation or a reprisal claim based on an allegation of sexual harassment. In this context, the applicant must show that the human rights factor was influential and not the sole or primary reason.⁷⁶ This concept has been well established.⁷⁷ It has also been applied in Ontario when the plaintiff has sued civilly to seek a human rights remedy.⁷⁸

Similarly, as noted above, there is no need to establish the intent to discriminate.⁷⁹

No Need for Corroborative Evidence

It is well-founded that while corroborative evidence is certainly helpful, it is not a pre-condition to prove an allegation of sexual harassment.⁸⁰

These human rights interpretative rules generally have a dramatic impact in the means of proving a sexual harassment allegation.⁸¹ The applicant in real life must prove the offensive action on a balance of probabilities.

Similar Fact Evidence

There is always an inherent danger in the admission of similar fact evidence as the alleged offender may be proven guilty of a disposition as opposed to actual evidence on the immediate issue.⁸²

The issue becomes more complicated as often the accusers may have collaborated with one another in advance, an issue which must be weighed by the decision maker in either admitting the evidence or determining its ultimate weight.⁸³

The test is described in the usual words debating the admission of questioned evidence, namely the “probative value” as opposed to the “prejudicial impact”.⁸⁴ One issue in determining the former is whether there is sufficient similarity between the proposed evidence and the immediate allegations. Such evidence ought not to be admitted if it only establishes a propensity.⁸⁵

In applying this test, the Tribunal will look to the proximity in place and time, the extent of the similar details, the number of occurrences, the circumstances of the similar acts and the presence of any uniquely identifying events.⁸⁶ The evidence must be cogent and have a demonstrable nexus to the issues⁸⁷ and be “striking similar”.⁸⁸ The reason for its admission is often to determine credibility issues as the facts of sexual harassment have often arisen in the absence of witnesses.⁸⁹

Evidence of otherwise good character is typically not allowed as not probative.⁹⁰ Many cases involve conflicting recounts of the facts involving two competing parties, with no independent witnesses supporting either view. In this event, credibility becomes an extremely important issue.

No Need for Three Step Process

There had been some debate as to whether a human rights tribunal or a civil trial was obliged to apply what has referred to as the “three step process” as is required in a charge of criminal sexual assault.⁹¹ This principle required the trial judge to direct the jury that there are more than two options to consider in determining whether a criminal case has been proven. It is not quite as simple as the jury must believe the accuser or the accused.

The jury must also consider the possibility that it could disbelieve the accused, but nonetheless determine that the evidence of the complainant did not prove the charge.

It has since been determined that this test was not mandatory to a civil case. ⁹² Often in a civil or a human rights case, the finding of credibility by the trier of fact “may well be conclusive”,⁹³ particularly where the plainctiff’s assertions are denied by the defendant.

This does not deny, however, the possibility that in some cases it is not quite as simple as the decider choosing between two conflicting genres of evidence.⁹⁴ Generally where the evidence is mutually exclusive on the critical mass, there will be no need to consider the third alternative.⁹⁵ In essence the three part test may be occasionally helpful,⁹⁶ but not always so. As long as the trier of fact applies the correct burden and standard of proof, the absence of this test will not be fatal.

Credibility Assessment

In making credibility assessments, the decider often will rely upon the test as set out in Faryna v. Chorny.⁹⁷ The passage below is frequently cited, no doubt to ensure that the reader and any appellate review body will be satisfied that the correct principles have been applied: ⁹⁸

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

This passage emphasizes the necessity for an objective assessment to be made as to whether or not the witness’ evidence “makes sense”. While this is certainly true, an important factor going into the assessment of credibility is the demeanour of the witnesses while giving evidence. In addition, the manner of speech of the witnesses is often telling in terms of their credibility, as noted by the following assessment of the demeanour of the witness:

In this case, I found that the applicant gave her evidence in a straightforward and direct manner, despite the fact that she was understandably quite nervous. She was able to describe with considerable certainty and precision the various incidents of harassment and discrimination that she alleged took place. Her evidence was not seriously disturbed on cross-examination. I do not believe that she exaggerated her evidence in any material way. Overall, I found her to be a credible witness.

In many sexual harassment cases, it would be unlikely to expect witnesses beyond the immediate parties. However, where potential witnesses do exist and are not called, particularly where many witnesses deny the allegations made by the complainant, certainly an adverse inference may be made.⁹⁹

Results of a Criminal Case

Occasionally the respondent has been found guilty or pleaded guilty to a criminal charge which has formed the same subject matter of the human rights complaint. The usual example is a charge of sexual assault. Technically speaking, the finding of a criminal trial judge does not meet all the indicia of issue estoppel. ¹⁰⁰ or res judicata as the parties are not the same and arguably the issues may be different as well. Notwithstanding such argument, such factual determinations have been deemed to be the evidence before the tribunal, ¹⁰¹ based on the submission that there must be consideration given to factors such as “judicial economy, consistency, finality and the integrity of the administration of justice”. ¹⁰²

There may be situations in which it would be inappropriate to admit such findings as evidence, as in a context in which the first proceeding was suggested to be tainted by improper conduct such as fraud or where new evidence, previously unavailable may question the original finding and other fairness issues have arisen. ¹⁰³

Other explanations may allow for the denial of the issue estoppel such as the accused may have faced minor consequences in the first charge and was not inclined to mount a full defence or made a plea for that reason. ¹⁰⁴ The respondent must show such affirmative evidence to explain why his evidence or agreed statement of fact in the first proceeding should not be used against him in the human rights process. ¹⁰⁵

Browne v Dunn

The rule in Browne v Dunn requires the cross-examiner to put to the complainant’s witness an anticipated contradictory statement to allow the witness the opportunity to affirm, deny or otherwise qualify her evidence on this issue.

For example, where the witness in chief, as part of the complainant’s case, testifies that Mr. Smith spoke to her aggressively and insisted she accompany him on a company trip to New York, and the respondent expected a defence witness to testify that the complainant told him a completely contrary story and in fact she was quite eagerly and voluntarily enchanted to travel with her boss, this contrary statement must be put to the witness in cross-examination.

As stated by the Court of Appeal, ¹⁰⁶ the rule in Browne v Dunn is a rule of fairness:

The rule in Browne v. Dunn is a rule of fairness: if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given an opportunity to address the contradictory evidence. It may be that counsel is not required to put every contradictory detail to a witness. However, the two matters in issue were hardly mere details.

 

1. SCC in 1987 in Robichaud in reviewing the Canadian Human Rights Act
2. The Supreme Court of Canada by McIntyre J., in Ontario Human Rights Commission v O’Malley v. Simpsons-Sears Ltd, 1985
3. As above
4. 2000 the Supreme Court of Canada in Quebec v Montréal (City)
5. See also McCormick v Fasken Martineau
6. The distinction as to carriage of the human rights complaint is also important and discussed later. May it suffice to say presently in most Canadian jurisdictions, apart from Ontario and B.C., it is the Human Rights Commission which is the party that presents the case to the decision making body, commonly called a Board of Inquiry.
7. O.P.T. v Presteve Foods
8. In the same case it was determined that the commencement date of the filing was the initial return date of the motion to amend the complaint to add these allegations of sexual harassment. The motion had been adjourned on its first appearance.
9. It is to be noted that while a finding of an employment relationship may be a precursor to jurisdiction of the human rights code to a workplace sexual harassment complaint, this does not automatically lead to employer liability for a sexual harassment complaint in all jurisdictions. This is discussed in detail subsequently.
10. See for example, Payette v Alarm Guard Services (Dimovski) in which this test was successfully applied. A reconsideration motion was dismissed by the Tribunal (Doyle)
11. The case involved the determination of employment status as an issue in the argument of vicarious liability, as a finding of an employment relationship would have been most beneficial as a stepping stone to the establishment of vicarious liability.
12. The Supreme Court also noted that the language which the parties may have chosen to define their relationship will not be determinative of the court’s finding
13. The cited reference reflected the words of MacGuigan J.A. in a tax case, Wiebe Door Services Ltd v MNR, 87 DTC 5025
14. Szabo v. Poley, 2007 HRTO
15. Much to the same effect is the decision of the Alberta Court of Appeal in 1986 in Re Reference re Individual’s Rights Protection Act dealing with taxi cab drivers and their broker, also known as Pannu v Prestige.
16. Payne v. Otsuka Pharmaceuticals Co Ltd.
17. Canada (Attorney General) v. Rosin (1990), 16 C.H.R.R. D/441, the Federal Court of Appeal
18. Sutton v Jarvis Ryan (Sengupta) HRTO
19. Chaudhry v ChoiceTaxi (Reaume) HRTO
20. As in McCormick v Fasken Martineau
21. As above.
22. See Pannu v. Prestige Cab (1986), 8 C.H.R.R. D/3911 (Alta.C.A.); Yu v. Shell Canada [(2004), 49 C.H.R.R. D/56] and Szabo v. Poley, 2007HRTO37(CanLII), 2007 HRTO 37 (CanLII) and McCormick
23. HRTO (Hart) in O.P.T and M.P.T v Presteve Foods and Jose Pratas
24. Simpson v CAC, (leave to appeal refused by the Supreme Court of Canada, [2002] S.C.C.A. No. 83)
25. See also Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.) a civil action for wrongful dismissal
26. Sutton v Jarvis Ryan (Sengupta) HRTO
27. van Woerkens v Marriott Hotels of Canada, in a civil action for wrongful dismissal.
28. Davison v Nova Scotia Construction Safety Association, a decision of the Nova Scotia Human Rights Board of Inquiry, upheld in the N.S. Court of Appeal
29. Taylor-Baptiste v OPSEU (Wright) HRTO
30. This issue of the employer defence of due diligence is reviewed subsequently. S. 65 of the Canadian Human Rights Act sets out the defence.
31. Schofield v Alta Steel, Abrahams v Calgary Board of Education
32. Heintz v Christian Horizons – Gottheil
33. Robichaud v The Treasury Board
34. S. 46.3 (1) Ontario Human Rights Code
35. S. 5(2) OHRC
36. S. 7 OHRC
37. The Ontario Human Rights Tribunal publishes a guide for the filing of human rights complaints, which quite rightly discourages employees from naming personal respondents. This should be ignored in sexual harassment cases.
38. Robichaud v The Treasury Board
39. This defence is not available where the questioned conduct is that of an officer or director of the employer, which basically incorporates the “organic theory” of employer liability described below.
40. See O.P.T.and M.P.T.v Presteve and Pratas
41. The Ontario Divisional Court in OHRC v Farris, McKeague, Leonard et al., which was a case of gender discrimination.Desousa v Gauthier (DeGuire) and Payette v Alarm Guard Services (Dimovski). In Payette, the manager was found to be personally liable. This was not a case of organic liability as the directing mind
42. Section 5(1) of the Ontario Code creates an obligation of the corporation to make a proper and timely investigation of the complaint. The same is true for the OHSA even prior to the September 2016 amendments. Failure to investigate will lead to an allegation of negligence and or constructive dismissal and or breach of an implied contractual term in civil court.
43. The Divisional Court decision of Walton Enterprizes v Lombardi The Divisional Court decision of Walton Enterprizes v Lombardi
44. This applies only to liability under the human rights statute for failure to investigate. Common law liability for such a default is not as straightforward and is discussed subsequently.
45. This is referred to in this text as “sexual reprisal” to distinguish such conduct from “general reprisal” which is retaliatory action taken due to the making of a human rights complaint.
46. B.C., Saskatchewan, Nova Scotia, PEI, Newfoundland & Labrador, Quebec, Nunavut
47. Robichaud v The Treasury Board
48. Nova Scotia and Manitoba
49. That is, whether there is a “due diligence” defence available.
50. That is, a reprisal for the use or threatened use of the Code remedy as opposed to conduct retaliatory to the sexual solicitation.
51. Lewis v Lake Ridge Health (Bhabha)
52. It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd
53. Iin Murchie v JB Mongolian Grill (Hendriks)
54. in Kowalczyk v Hudson’s Bay (Hart); Jones v. Amway of Canada Ltd. [2002] O.J. No.1504 (Ont. Div. Ct.)
55. This arises from S. 5(1) of the Ontario Code.
56. OHRC v Farris
57. The June 1968 decision of the Board of Inquiry (Tarnopolosky) Britnell v Michael Brent Personnel Placement Services under the Age Discrimination Act of 1966 was an early decision to deal with the burden of proof.
58. Supreme Court of Canada in O’Malley v Simpson Sears
59. Ontario Court of Appeal Peel Law Association v Pieters
60. as above
61. Ontario Court of Appeal Peel Law Association v Pieters
62. Such is not the case where the respondent relies upon a statutory defence, in which context the burden of proof does shift as per the Supreme Court, in Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982CanLII15(SCC), [1982] 1 S.C.R. 202, and to the same effect Ontario Court of Appeal Peel Law Association v Pieters
63. The Divisional Court in Shaw v s.Phibbs 2010 ONSC 3884 (confirmed on appeal)
64. Ontario Court of Appeal Peel Law Association v Pieters
65. As above
66. Kowalczyk v Hudson’sBay (Hart) HRTO
67. The Divisional Court in Shawvs.Phibbs 2010 ONSC 3884 (confirmed on appeal)
68. Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (Hornung), a decision of the Canadian Human Rights Tribunal
69. Harriott v National Money Mart (Whyte) HRTO
70. Simpson v CAC, (leave to appeal refused)
71. SH v M Painting (Reaume )
72. Kowalczyk and Hudson’sBay (Hart)
73. Divisional Court in Smith and Ontario (Human Rights Commission) v Mardana. Div. Ct. confirmed that the Code violation need only be a factor and that intent is not required to be proven.
74. Take for example this analysis:
    … The customer blamed Smith and the employee blamed Smith. Smith said that he should have been listened to and believed by management. Whether or not Smith is correct, I find the termination was not racially motivated. Why would the very people who hired him, who were impressed by him, who promoted him, and who accommodated his school schedule in terms of working hours, suddenly make a decision against him based on his race?Insert your note here.
75. R.v Bushnell Communications
76. Supreme Court of Canada in Janzen v Platy, Human Rights Tribunal in Hummel v Transport Training (Cleghorn)
77. April 1987 Divisional Court decision of Scott v Foster Wheeler 8 CHRR D/4179, sitting on appeal from the decision of the Board of Inquiry; The Federal Court of Appeal in Holden v Canadian National Railway1990 14 CHRR D/12
78. Wilson v Solis Mexican Foods. The Court accepted in its analysis the application of a human rights principle of construction, namely, that the alleged violation of the Code need be shown to be but a factor and not the sole factor in the decision to terminate.
79. Ontario Divisional Court in Smith v. Mardana Ltd. (No. 2) (2005), CHRR Doc. 05-094; Cugliari v Telefficiency (Faughan)
80. G.H.v Macdougall
81. Apart from a general reprisal or sexual reprisal, where such rules are very helpful
82. Bell and Korczak v Ladas and Flaming Steer Steak House(Shime) 1 CHRR D/155.
83. Bell, as above
84. Similar fact evidence, of course, will always be prejudicial, Papa Joe’s Pizza and OHRC, Divisional Court
85. Papa Joe’s Pizza and OHRC, Divisional Court
86. Harriott and National Money Mart (Whyte); R. v. Handy, 2002SCC56(CanLII), [2002] 2 S.C.R. 908
87. Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8
88. Bell v. Ladas, [1980] O.H.R.B.I.D. No. 16.
89. Papa Joe’s Pizza and OHRC, Divisional Court
90. As stated in Cugliari by the Tribunal
91. As set out by Supreme Court of Canada in R.v W.(D.)
92. MacDougall
93. As above
94. Papa’s Pizza and OHRC 
95. Papa’s Pizza and OHRC
96. The Neinstein case then cited was at the Divisional Court level. It later went to the Court of Appeal and was set aside, although not on this issue.In the intervening period between the Divisional Court decision and that of the Court of Appeal, the Supreme Court of Canada released its decision in MacDougall which confirmed that the three part step process was not applicable to civil cases, a point noted by the Court of Appeal in indicating its agreement with the Divisional Court on this issue.
97. I[1952] 2 D.L.R. 354 (B.C.C.A.), Harriott v National Money Mart and Wade (Whyte); Ratneiya v Daniel and Krumeh (Eyolfson)
98. A further reference source is Justice Green in R. v. Taylor, 2010 ONCJ 396(CanLII), [2010] O.J. No. 3794, 2010 ONCJ 396, (at paras. 58 to 60)
99. Kowalczyk v Hudson’sBay (Hart). (There were multiple reasons expressed for the Tribunal not accepting the complainant’s evidence. This was one of them expressed – ed); This issue was also discussed in Cugliari.
100. Ontario Court of Appeal in Rasanen v Rosemount provides a good review of the test of issue estoppel. The parties and issue must be the same and the decision must be judicial and final. There is overall discretion to apply or deny the principle as well.
101. G.G.v 1489024 and Elias (Whist)
102. Toronto v CUPE
103. Toronto v CUPE
104. Toronto v CUPE
105. Hughes v 1308581 Ontario Ltd and Tanvir Hussein (Martin)
106. R. v. Hall, 2010 ONCA 421(CanLII), 2010 ONCA 421 (CanLII) at para. 11.