Janice Rubin is an employment lawyer and workplace investigator in Toronto.
When the #MeToo movement took hold in Canada in late 2017, lawyers across the country wondered what impact it would have on the law. Would complainants have an easier time making their cases? Would damages for victims increase? Would judges and adjudicators hold employers and employees more readily to account when sexual harassment and violence occurred in the workplace?
Now, almost five years in, there are encouraging signs that legal decision makers across the country are reacting to the times: The law is increasingly responsive to the prevalence and seriousness of workplace sexual harassment. May is Sexual Assault Prevention Month in many provinces, underscoring the relevance of these conversations today.
Here are four examples of recent cases, plus a statutory change, that demonstrate this trend.
One act of touching is enough to terminate a long-term employee for cause
In a 2021 case from Alberta, (AG Growth International Inc v. Dupont), and a 2022 case from Ontario, (Render v. ThyssenKrupp Elevator (Canada) Limited), courts confirmed that one incident of unwanted sexual touching was enough to terminate the employment of the individual who had engaged in the misconduct. In the Ontario case, the employee slapped his co-worker’s behind. In the Alberta case, the employee lifted his co-worker’s T-shirt, exposing her body and her bra. In both cases, the fired employees had long tenure with their employers. Nevertheless, their terminations for cause were upheld: The courts indicated clearly that just because something only happened once does not mean it is not serious.
Re-examining what unwelcome behaviour is
Historically, an essential element of proving a case of sexual harassment has been establishing that the conduct in question was “unwelcome” or “ought reasonably be known to be unwelcome.” In practice, this placed a burden on complainants to show that they were not interested in the behaviour directed at them. This often led to difficult queries around whether failure to actively object to that behaviour – or to acquiescence to it – meant it was welcome by the complainant.
In two recent cases from British Columbia, (The Employee v. The University and Another and Ms. K v. Deep Creek Store and Another), the Human Rights Tribunal suggested it may be time to revisit this element. Relying on new academic research, the tribunal signalled a better approach might be to focus on whether the respondent had obtained the complainant’s consent to engage in the behaviour in question, rather than to probe the complainant as to whether the behaviour was welcome.
Sexual harassment class actions are more prevalent
Class actions are becoming an increasingly effective way to address allegations of widespread sexual misconduct in employment.
Just last month, British Columbia’s Court of Appeal certified a class action by female flight attendants who alleged they had experienced sexual harassment while working at WestJet Airlines. This reversed an earlier decision by a lower court denying the certification. Rejecting an argument that individual complaints to the Human Rights Tribunal would be preferable, the court concluded, among other things, that proceeding by way of class action was a better route given access to justice issues.
Also, in February, the Ontario Superior Court approved a $10-million settlement of a class action against the Royal Winnipeg Ballet. The claim was based on allegations that a former photographer with the ballet had taken nude, semi-nude and sexualized pictures of as many as 250 of the ballet’s students. Some of these pictures had been posted online.
Nix the non-disclosure agreement
The #MeToo movement has been highly critical of the use of non-disclosure agreements (NDAs), alleging the contracts silence victims and protect employees who have engaged in sexual misconduct.
Later this month, Prince Edward Island will, through new legislation, become the first province in the country to restrict the use of these agreements in sexual harassment cases. While the legislation does not provide an absolute ban on NDAs, it does significantly limit how these agreements can be used, with less opportunity for an agreement to be imposed on a survivor of sexual harassment or violence who does not want confidentiality.
It is important to note that these cases and statutory initiatives are from across the country and have arisen in vastly different workplaces. Taken together, they suggest the law is indeed responding to a greater understanding of the ubiquitous presence of sexual harassment and violence in Canadian workplaces, along with recognizing the need for stronger legal measures to help eliminate it.
While progress is slow, we should be encouraged nonetheless that it is under way.
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