In the last 20 years, tolerance for inappropriate sexualized conduct in the workplace has dramatically declined; however, a recent decision of the Ontario Court of Appeal underlines that not everyone is getting the message.
In 1999, the trial decision of the Ontario Superior Court in Simpson v. Consumers' Association of Canada, 1999 CanLII 14880 ONSC, upheld the Plaintiff's claim for wrongful dismissal in a situation where the Plaintiff was dismissed for just cause involving allegations of multiple incidents of sexual harassment. While acknowledging the events, the trial judge found that the same occurred outside the workplace or as consensual conduct.
Two years later the Ontario Court of Appeal strenuously disagreed – see Simpson v. Consumers' Association of Canada, 2001 CanLII 23994 ONCA.
The alleged conduct on the part of the Plaintiff included, without limitation:
- Propositioning his administrative assistant;
- Tricking a colleague into attending a strip club;
- Having an affair with his assistant;
- Skinny dipping in front of a colleague;
- Hot-tubbing naked in front of colleagues; and
- Grabbing the buttocks of a colleague.
The Ontario Court of Appeal confirmed that activity that occurs after official business does not make this outside the workplace if such activities occur in the context of the work environment.
The court also noted that it was an error for the trial judge to ignore the supervisory role of the Plaintiff and the power imbalance which goes to the issue of consent.
More recently, the Ontario Court of Appeal revisited this issue in Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728. Not unlike the Simpson fact situation, the Plaintiff had been terminated for just cause based upon a complaint of sexual harassment by a female co-worker.
While the trial judge found that just cause was not established, the Ontario Court of Appeal allowed the appeal holding that the inappropriate, demeaning comments, taken together with the refusal to apologize, resulted in an irreparable breakdown in the employment relationship that could not be tolerated by the employer.
The comments attributed to the Plaintiff by the complainant, who was not cross-examined, included:
- Asking the complainant if she danced on the tables at a workplace event;
- Telling the complainant to sit on a male colleagues lap;
- Describing gardening as one of any good reasons for the complainant to bend over and go down on her knees;
- Stating that the complainant's name was on top of a list because of course she was on top getting pumped under the skirt until she can't stand any more (coupled with thrusting hip gestures);
The Plaintiff's explanation with respect to the foregoing allegations was not accepted by the employer or the Ontario Court of Appeal, which adopted the three part test set out by the Court of Appeal in the earlier decision of Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ONCA) as follows:
- Determine the nature and extent of the misconduct;
- Consider the surrounding circumstances; and
- Decide whether dismissal is a proportionate response.
In the Hucsko decision, the Ontario Court of Appeal noted that sexual harassment is not confined to actions but includes comments with a sexual innuendo and concluded that there is no doubt that the Plaintiff's comments constituted sexual harassment in that the same were unsolicited and unwelcome causing discomfort, humiliation and a hostile and offensive work environment.
Given the Plaintiff's unwillingness and/or inability to acknowledge the harassment and to accept the discipline imposed, the employer was justified in its concern about future behaviour on the part of the Plaintiff and in its decision to terminate the employment relationship.
Justice Feldman categorized the Plaintiff's comments as:
- Based on gender and having an unmistakable sexual connotation;
- Demeaning and undermining the dignity of their recipient;
- Unwelcome;
- Creating a poisoned atmosphere for the complainant in her workplace.
The court cited with approval the comments of Carthy J.A. in the Bannister v. General Motors of Canada Ltd. decision, 1998 CanLII 7151 ONCA.
"…no one expects profanity or vulgarity to be eliminated, but unwelcome conduct or expressions based upon gender or race cannot be tolerated."
Another noteworthy reference in the decision is the quote from the Supreme Court of Canada's discussion of sexual harassment in Janzen v. Platy Enterprises Ltd., 1989 CanLII 977 (SCC):
"When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self respect of the victim both as an employee and as a human being."
While modern workplaces attempt to deal with this very serious ongoing issue, it is clear that there remains a significant amount of work to be done and uncertainty as to what is a proportionate response in any given circumstance. What is not subject to debate is the employer's obligation to perform an appropriate investigation in response to allegations of sexual harassment, and in many provinces this duty has become a statutory requirement.
The Code of Practice to address workplace harassment put out by the Ontario Ministry of Labour sets out in its preface the simple statement:
"All workers are entitled to a safe and healthy workplace" and reminds us that everyone in the workplace has a role to play".
If you would like to discuss this article further or have any questions, please contact the authors or a member of our Employment, Labour & Equalities Group.