Last week, the Ontario political scene has been rocked by multiple allegations of sexual harassment and sexual assault within the ranks of the Progressive Conservative Party of Ontario. This, along with the #metoo movement and the Jian Ghomeshi criminal trials in 2016, women in Ontario are finding strength in speaking out and telling their experiences. In reading the latest stories about the former Progressive Conservative leader, Patrick Brown, and the former party President, Rick Dykstra, I felt that there is not enough information as to how to know and deal with sexual harassment and sexual assault in the workplace. People immediately think that dealing with sexual harassment and sexual assault in the workplace means going to the police or suing someone in court. Both can be somewhat intimidating pathways.
But there are other avenues.
The Human Rights Tribunal of Ontario
One avenue is the Human Rights Tribunal of Ontario (HRTO). This may provide a safer alternative to going to court for sexual harassment and sexual assault. If the complainant does not win, she is not exposed to costs consequences for bringing the matter forward. From a practical standpoint, if the responding party is aware of the public nature of the accusation, they may be more willing to negotiate an agreement to prevent further publicity. It is definitely a leveraged negotiating position. Average penalties for individuals and companies that commit sexual harassment or sexual assault in the workplace get $3,000 to $5,000 per incident. The highest HRTO award for sexual harassment and assault in the workplace is $150,000 in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII). Amounts in sexual harassment and sexual assault cases are higher in civil court proceedings. However, the catch is that if the complainant loses, they may be on the hook for a considerable costs award.
Another reason that someone might want to go to the HRTO is the fact that “compensation for injury to her dignity, feelings and self-respect,” are automatically part of any judgment at the Tribunal. Civil court tends to separate this amount as “punitive damages” and “general damages”.
A third reason to go to the HRTO for sexual harassment or sexual assault complaints is that the harassment or assault can be found outside of the workplace and can be work-related, like a restaurant for a work function or the boss’s home. The HRTO has used S.S. v. Taylor, 2012 HRTO 1839 (CanLII) that relied upon Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, 1989 CanLII 97 (SCC) and Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ON CA). Both the Supreme Court of Canada and the Ontario Court of Appeal have found that it is the sexualized conduct that could affect the work environment or could lead to “adverse job-related consequences for the victims of harassment.”
A fourth reason is that a woman’s lack of objection does not mean consent to the sexual behaviour or remarks. If there is a power imbalance, then the employee who speaks out could face dire consequences.
The downside is that it is generally regarded that you have one year from the date of the last incident to bring your application to the Human Rights Tribunal. There are exceptions. One of the things that you would need to prove is that despite the delay, there was no prejudice on witness recall of facts and the like. Another is the vulnerability of the victim-applicant.
The Ontario Labour Board
The Occupational Health and Safety Act has provisions to deal with workplace harassment and workplace sexual harassment. Ministry of Labour investigators only makes sure that the employer is in compliance with the act. That means there is an investigation policy in effect and that you were told about it. Failure on either count can lead to fines to the employer. The Ministry of Labour does not investigate individual incidents of sexual harassment. If you have been fired, suspended, or disciplined for making a complaint to the Ministry of Labour, you can ask for a hearing with the Ontario Labour Board. It is illegal for an employer to bring about a reprisal for making a complaint to the Ministry of Labour.
Steps to Take for Sexual Harassment and Sexual Assault
- If you are assaulted, sexually assaulted, or a victim of criminal harassment (stalking), contact the police. If you are threatened with assault, sexual assault or stalking, contact the police. These are criminal matters and need immediate attention.
- If you have been sexually harassed, contact the following:
- if you belong to a union, contact your union representative or steward;
- in a non-union workplace, contact your Human Resources department or the Office of the Worker Adviser;
- the Ontario Human Rights Tribunal; or
- a lawyer or paralegal.
- If your employer does not have a workplace harassment policy or program, you were not advised of the workplace harassment policy or program or given instructions as to how to access the policy or program, or that your employer did not conduct a harassment investigation, you can contact the Ministry of Labour.
- If your employer made a reprisal for contacting the Office of the Worker Adviser or the Ministry of Labour, you may make a complaint to the Ontario Labour Relations Board
Resources
Ontario Human Rights Commission–“Policy on Preventing Sexual and Gender-based Harassment“, including how to recognize sexual harassment in its various forms
Assaulted Women’s Helpline–a 24-hour crisis line for women in need of counselling, emotional support, information, and referrals
FEM’AIDE–Ligne de soutien pour femmes violentées
