Show Notes:

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Lecture Slides:

Welcome everyone this is Amer Mushtaq from YouCounsel.

If you are a victim of sexual harassment, sexual misconduct or discrimination within the employment law world this lecture will provide you with some of the basic legal options that may be open to you with respect to your complaint about these issues. From my own practice, I have been dealing with sexual harassment and discrimination issues for a long time in the employment law world through the courts and through the Human Rights Tribunal. This issue has been in existence for a while but we all know that due to recent news media coverage this issue has become a more public issue and there is a larger discourse that is taking place.  In that context this lecture purely deals with some of the legal options that may be available to you if you have suffered sexual harassment, sexual misconduct or discrimination.  We begin as always with a disclaimer that this course is not legal advice.  If you have any specific questions, you should contact either a lawyer or a paralegal or contact the Law Society of Upper Canada in Ontario for referrals to a lawyer or paralegal.

What is sexual harassment/discrimination?  A lot of times it is obvious—sometimes it’s not.  It is important to explain legally what would constitute sexual misconduct, harassment or discrimination in a legal framework so you can understand that if you have suffered any of these issues (this kind of conduct), then that may amount to sexual misconduct or harassment.  I will give some of the examples to explain what could constitute sexual harassment and discrimination.

1. Asking for sex in exchange for a benefit or a favor—which is pretty straight forward.
2. Repeatedly asking for dates, and not taking “no” for an answer. We understand that as well.
3. Demanding hugs—demanding hogs depending upon the circumstances may have different connotations. As you know from the case against Albert Schultz from Soulpepper Theater, one of the allegations raised by the complainants is that he demanded hugs or he had certain hugs that the complainants felt were completely inappropriate or were sexual in nature.  That could constitute sexual misconduct or harassment. 
4. Making unnecessary physical contact including unwanted touching.
5. Using rude or insulting language or making comments towards women (or men, depending on the circumstances)
6. Calling people sex specific derogatory names.
7. Making sex-related comments about a person’s physical characteristics or actions.
8. Saying or doing something because you think a person does not conform to sex-role stereotypes.
9. Posting or sharing pornography, sexual pictures or cartoons sexually explicit graffiti, or other sexual images.
10. Making sexual jokes.
11. Bragging about one’s sexual prowess.
12. Comments: And making certain comments, for example, making comments that a woman has acquired her position in the organization because she slept her way to the top.
13. Employers could also be liable for sexual harassment for comments or conduct that took place during any business trips, company parties and functions.
14. Over scrutinizing an employee’s work or criticism in a sexual harassment context; and then
15. Comments about appearance: “you don’t look pretty today”; or sometimes addressing a woman as “young lady” in a patronizing manner; or comments like “let’s run off and get married”.

 All of these are some of the examples of conduct that will constitute sexual misconduct, harassment and discrimination.  There could be a variety of other ways in which sexual misconduct can be carried out.  This gives you a basic sense of some of the ways in which sexual misconduct and harassment or discrimination has taken place in the Canadian employment law world.

What are your legal options?  It’s important to understand that you may have a large variety of legal options available to you if you are a victim of sexual misconduct or harassment or discrimination.  To get a better understanding of what are those legal options and which legal option may be the most appropriate for you, will be a good tool to have.  Let’s talk about legislation.  Sexual misconduct, sexual harassment or discrimination is already covered under a variety of federal and provincial legislation.  I’ll give you examples of some.  The first one that comes to the top of my mind, is obviously, the Criminal Code.  There are specific sections in the Criminal Code that deal with sexual misconduct, assault and harassment.  We will talk about that later.  If you are dealing with Criminal Code legislation, then you know that it is a domain of the police (the Crown).  Once you complain to the police, the police then decides whether it’s an appropriate circumstance in which charges should be laid against the accused.  Then they take-over that matter, and the Crown is the one that prosecutes the case on behalf of the public. Canada Labor Code is another legislation which deals with federally regulated employers.  If you are an employee who works for a federally regulated company—mostly these are banks, railway and telecommunication companies which are generally federally regulated companies.  You need to know whether your employer is federally regulated or not.  If it is, then, the Canada Labor Code is the legislation that may apply in your specific circumstance.  Then we have human rights legislation.  We have the Canada Human Rights Act which, again, deals with federally regulated employers and we have the Ontario Human Rights Code that deals with provincially regulated employees (which are based in Ontario).  Other provinces have similar human rights legislation that deal with human rights issues in those provinces.  Then we have an Ontario Occupational Health and Safety Act and other provinces may have similar legislation with respect to health and safety.  If you are a unionized employee, then you have the option of bringing about a grievance under the collective agreement and there’s a separate process for that.  You launch a grievance under the collective agreement.  If you’re bringing a court action (a civil action), then you can have a tort action—a claim for a tort of harassment, a tort of assault and battery, tort of intentional infliction for causing mental pain and suffering.  There may be other torts that may also be available. These are all the legislation and the legal avenues that are open to you with respect to sexual harassment, misconduct or discrimination.  Let’s look into each one of them briefly.  We will not get into a lot of detail.  The idea is to give you an overview of these options.

Under the Criminal Code a sexual assault is defined as an assault in which the complainant’s sexual integrity is violated.  It’s a pretty broadly defined category and it all comes down to the specific circumstances of the case and the court will determine whether the complainant’s sexual integrity was indeed violated and, if it was, then it will constitute assault.  Some of the things that you want to keep in mind with respect to a criminal sexual assault is, for example, the accused does not need to have a sexual purpose.  Even if the accused did not have a sexual purpose, the conduct may itself amount to sexual assault.  Sexual gratification of the accused is also not essential for it to constitute sexual assault.  When the accused has disciplined or humiliated someone in a sexual manner, that may also constitute sexual assault. Then purported “educational” performance could also be a sexual assault, etc. Again, the example of the recent issue of Saltpepper Theater, the Albert Schultz case comes to mind in which one of the accused alleged that Schultz provided gave certain directions in their rehearsals with respect to some of the sexual conduct which they believed were inappropriate or amounted to sexual harassment—purported educational conduct may also amount to sexual assault. Part V of the Criminal Code entirely deals with sexual offenses, public morals and disorderly conduct.  You can review it to understand some of the clauses in the Criminal Code. The Criminal Code is available online you can simply google it.  Similarly Part VIII deals with offenses against the person and reputation. Then Sections 265, 271, 272, 273—also deal with sexual assault related charges.

Canada Labor Code, as I said, deals with federally regulated employers.  It has Section 247.1 which defines sexual harassment as:

 In this Division, sexual harassment means any conduct, comment, gesture or contact of a sexual nature

(a) that is likely to cause offence or humiliation to any employee; or

(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.

Any humiliating conduct common gesture or conduct of sexual nature which causes these kinds of conditions may be considered sexual harassment.  You will notice from these definitions that the definition of sexual harassment or misconduct is very broadly defined because it really depends upon the individual circumstances of the case.  You cannot really make a list of the kinds of conduct or comments or gestures and then impose that list to be the definition for sexual harassment because there are so many ways that it can be done that the Court and the judicial bodies need to have a much broader definition to deal with these kind of issues.

Human Rights Act, as I said is a federal legislation and section 3(1) deals with discrimination issues and it outlines all kinds of discrimination that is prohibited on the basis of race, national or ethnic, origin, religion and in particular sex and sexual orientation that is covered here which will be the underlying grounds to deal with any sexual harassment misconduct or sexual discrimination issues. Similarly, section 10 deals with the employment situation—for an employer not to have policies or practices for recruitment, hiring, firing, promotion and whatnot that may deprive or tend to deprive an individual or a class of individuals of any employment opportunities on a prohibited ground of discrimination.  Prohibited ground of discrimination, as we noticed earlier are, the grounds of sex and sexual orientation.  It will cover sexual harassment and sexual misconduct. Section 14(1) and (2) are also Human Rights Act discrimination clauses.  It now expands to discrimination with respect to the provision of goods, services, facilities or accommodations.  Some of the commercial transactions that may happen in public or with the general public and in those contexts if you are a victim of sexual misconduct or harassment—for a federally regulated company you will look towards the federal Human Rights Act to have that complaint against that entity or individual.

Going to the Human Rights Code—this is Ontario.   Very similar legislation in the Human Rights Code—as in the Human Rights Act. There are some differences—but generally the theme is the same, that there cannot be any discrimination on the basis of sex which covers sexual misconduct and harassment with respect to services, accommodation, contracts and employment.  It’s not just the employment context in which sexual misconduct is prohibited but also with respect to any services, accommodation and contracts.  On a large number of commercial transactions, in which you may be engaged, if you experience sexual misconduct harassment or discrimination then you may have grounds to file a complaint against the perpetrator, against the accused at the Human Rights Tribunal under the Human Rights Code.  Sexual harassment is specifically defined in section 7. Then it deals with sexual solicitation by a person in a position to confer benefits.  As we generally know from the stories that have come up, that sexual harassment (sexual solicitation) in a lot of cases is done by a person who is in some position of power over the victim.  That’s sort of the common theme.  It’s not limited to that but generally speaking that’s the theme that we notice in most of these cases. Then section 8 of the Human Rights Code specifically states that if the victim comes out and files a complaint for sexual harassment then the employer cannot—or the party cannot reprise against—cannot penalize that person for making that complaint.

Occupational Health and Safety Act is a legislation that deals with health and safety in Ontario.  In section 1(1) of this Act, workplace sexual harassment is included in all kinds of workplace harassment.  Then the Act goes on to define workplace harassment in specific terms: “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 to reasonably be known to be unwelcome.”  It defines, again, very broadly, what could come—what could constitute workplace sexual harassment.  Then it further defines sexual solicitation and advances.  The idea is that it’s a broader definition. It can capture a variety of circumstances in which a conduct or comment can be defined as workplace sexual harassment. Within the Occupational Health and Safety Act Part III.0.1 is the entire part that deals with workplace harassment and violence.   It has all these clauses for employers: programs, policies and investigation procedures to deal with any kind of workplace harassment and violence.  It also provides a method for filing a complaint with the Ministry of Labor.  Then Ministry of Labor can send inspectors, who have significant powers.  They can investigate the complaint and they can impose on the employer to engage external third party investigators to conduct the investigation with respect to the allegations of sexual misconduct or harassment.  

Now if you’re a unionized employee, your first option could be to file a grievance pursuant to the collective agreement.  Unionized employees are part of a collective agreement.  It’s like a contract between all of the unionized employees on one side and the employer on the other side.  The ‘collective agreement’ deals with all kinds of issues, all kinds of disputes and sexual harassment being one of those issues.  You do have the opportunity to file a grievance.  Essentially, if you’re a unionized employee you go to your union steward, you file a complaint, they fill out a form that is called a grievance form and that form is submitted or served on the employer.  Then that process takes its own course.  It’s called an arbitral process.  If the parties are unable to resolve that issue, then they go to an arbitration where an arbitrator decides on the merits of the allegations.  If the victim believes that the conduct was serious enough to have criminal charges laid, then they obviously have the option to go to the police and report the incident.  They can also file a human rights complaint either with the Canadian Human Rights Commission (if it’s a federally regulated employer) or with the Human Rights Tribunal (if it’s a provincially regulated employer in Ontario).  You want to keep in mind that if you are a unionized employee you actually have a limited opportunity to go to a civil court. And you may remember or you may not the Jian Ghomeshi case.  Prior to the situation where the police (the Crown) had laid criminal charges against Mr. Ghomeshi, when the allegations against him had come forward, he had actually launched a civil case (civil claim) against his employer for defamation and some of the other allegations that he had raised.  You may know this or may not but he had to withdraw that case.  I believe he ended up paying some costs (legal costs) to the employer CBC in that case—primarily because he was part of a unionized workforce—he did not have the option to go to court and sue the employer.  His only recourse being a unionized employee was to actually file a grievance against CBC and not go to court.  I believe he ended up going to the court and then he had to withdraw the case.  If you’re a unionized employees you have to be absolutely sure what are your options with respect to a legal complaint and recourse.  Going to court may not and not in all cases but in some circumstances you may not have that option to take the employer to court.

Now civil action obviously is an option.  Civil action is a court action in a court and it could be based on a number of causes of action.  It could be a clear case of Torts: could be a tort of harassment, assault, battery, intentional infliction of mental suffering, etc.  I have a few lectures on different kind of torts that you may want to review if you want to understand the concept of a tort action a bit better.  Then you have the option of claiming a breach of statute.  Human rights statute that we have just talked about, Occupational Health and Safety Act –you can claim that the employer of that individual against whom you have a court action breached these statutes and therefore is liable to you for your claim.  Then, you may have the option of suing the employer in the civil court because the employer may have vicarious liability—may have liability for the conduct of the employee who is accused of the sexual misconduct or harassment or discrimination.  Civil action is another option. 

Now when you have all these options you obviously need to think about which option, which legal recourse is suitable to your specific circumstances.  We’ll talk about some of the things that you need to consider before you actually decide what direction you want to take to file your complaint or grievance. 1. is the internal organization remedies.  It is always a good idea if you are able to file a complaint within your own organization. If you are an employee within the structure, with the Human Resources or the superiors in your company—then that is an approach that you must take. Of course, there are circumstances in which filing a complaint internally is not practicable.  For instance, if the person that you have to file a complaint with is the person who is in fact the accused—again the example comes of Mr. Schultz.  In this case he was a Director of The Soulpepper Theater, and, I believe his spouse was also an Executive Director. Both those individuals were in the highest level of command in that organization.  It may not have been a practicable approach to file complaints against Mr. Schultz with him or a spouse.  If you work in an organization where you can easily with confidence and with some comfort file a complaint within the organization, then it’s a good idea to at least file a complaint and see if the employer or the company takes this complaint seriously and then provides remedies or takes action. 2. Second thing, you want to consider is Burden Of Proof.  It’s very important, a lot of people understand this, maybe not, that the burden of proof in criminal and civil cases is different.  We know at least from the T.V. shows that in criminal cases Crown or the prosecutor has to show beyond a reasonable doubt that the accused did in fact do what he or she is charged for.  The burden of proof is much higher. The Crown has to prove beyond reasonable doubt.  Whereas, in a civil court the burden of proof is a balance of probabilities—which means, more likely than not, it’s just a little more than 50%.  If you are the victim and you have lost a civil action against the accused, then, on a balance of probabilities your story should be more plausible (more believable) than the defendant and if you are able to do that then you are successful in your civil action.  It’s important to recognize what is the burden of proof in this case.  3.  Another component is the opportunity to examine evidence before trial and this is an important factor.  A lot of people may, or may not know this, but for instance in criminal cases the entire burden is on the Crown to produce any and all evidence to show that the accused did in fact what he or she is charged for and so the accused does not even need to testify.  The accused is not even needed to respond in terms of producing any evidence.  He or she has to respond to the questions but does not need to produce any documentary evidence to support his or her case and so the entire burden in a criminal case is on the Crown and the accused does not need to do anything.  Again, we come back to the Ghomeshi case—where we all know that at the time of trial when the complainants were cross-examined by Mr. Ghomeshi’s counsel, there was this damning e-mails, that were brought forth that Mr. Ghomeshi had kept, which the counsel produced and cross-examined the complainants of those e-mails and those e-mails were not provided to Crown because there was no legal requirement to produce that documentary evidence to crown prior to trial.  This was almost done in a theatrical manner in which the e-mails were produced and complainants were taken by surprise and in fact the Crown was taken by surprise.  In a civil system that’s not the case.  In a civil system all of the evidence that both parties—accused and the defendant/s/ complainant and the defendant / plaintiffs and the defendant—are  going to rely on a trial needs to be exchanged before-hand and in fact parties have the opportunity to ask questions which is called examination for discovery or depositions in American cases.  You have full opportunity to understand what kind of evidence will be against you and the other side will have full opportunity to understand what kind of evidence is against them.  In a civil matter the evidence is already present and then you test it out at trial.  A very different approach—different process in a criminal matter and in a civil matter. 4. You want to think about how the trial and the investigation process is conducted because trials are significantly stressful, especially if you are a victim of sexual misconduct or harassment. The trial process is hard on those victims. They have to relive the experience, their credibility is questioned and tested and whatnot.  It’s a harder process and you need to understand what kind of process you are going to go through to have your matter judicially decided and whether you are comfortable to deal with that process. That’s an important consideration.  5.  Then what kind of remedies are you seeking—what is it that you want out of this process? If you want that person to go to jail and have criminal responsibility for his or her conduct then criminal allegations, criminal charges are the way to go.  With respect to civil matters and civil actions, I think it’s important to understand that in large part a civil court is essentially going to provide a monetary remedy. Yes, there will be a recognition in the judgment that the accused was charged with or was accused of a misconduct and he or she was found guilty of it. Obviously, there is value of that judgment. At the end of the day it’s the court’s power to provide a monetary award—that is what drives the civil action predominantly.  At some point the judge will assign a certain monetary value to your suffering and then award that money to you either in the form of compensatory damages or punitive damages.  In the end that’s what it is.  If you’re looking for systemic remedies, then the court may not be the right place because systemic remedies is the domain of Human Rights Tribunal or Human Rights Commission because they have larger powers with respect to these.  They can require the employer or the company to institute policies, conduct human rights audit, go through training and whatnot.  The larger systemic remedies are generally the domain of these specialized tribunals like Human Rights Commission and Human Rights Tribunals.  It is important for you to recognise what kind of remedies may be available to you in a specific course of action and whether that’s suitable to you or not. 6.  Finally, I made the comment about no forum shopping or multiple proceeding.  Let me explain what is meant by this.  The idea behind a judicial proceeding is that you pick one avenue (one course of action) and have your legal matter adjudicated in that judicial body and then whether you’re successful or not you cannot then go to another judicial body and try to relitigate it again.  For instance, if you are a unionized employee and you filed a grievance and let’s say you were not successful in your grievance.  You don’t have that opportunity now to go to Human Rights Tribunals and file a complaint for the same or similar facts or the basic underlying story is the same—that option is not there.  That’s considered forum shopping.   You cannot pick and choose. Similarly, you cannot have multiple proceedings. You cannot file a grievance on one hand and then file a human rights complaint on the other hand or commence a court action on the third side.  You’ll have to decide at the outset which direction you want to take and then you’ll have to stick with it or you have limited opportunity to withdraw and then go to the other forum.  It is something that you have to consider at the outset. Now you can have a criminal proceeding and you can have a civil proceeding.  That is allowed.  But within the civil proceeding context, you don’t have the opportunity to have these multiple proceedings taking place.

These are some of the factors, considering your circumstances, you will have to choose. Hopefully, you will not need to rely on this lecture. Hopefully, you don’t experience any of those sexual misconduct or harassment things that we have briefly talked about.  But if you are a victim of sexual misconduct or harassment, hopefully this lecture will provide you an overview of some of the legal options that you may have.  Thank you for watching and please share your comments with us and if you’ve any questions please feel free to contact us.