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Author: David Harris

- The Law on Workplace Sexual Harassment in Canada / Articles posted by David Harris

Evidentiary Issues in Sexual Harassment & Assault Cases

Many criminal and administrative cases have cautioned against the use of “stereotypical assumptions” of the expected behaviour of a person who has been the victim of a sexual assault or harassment. Criminal Cases In the criminal context, the fact pattern is often one in which the victim is the critical witness on whose credibility the case may rest. In addition, frequently the victim has been a minor when the alleged wrongdoing took place. This may include a reference to the conduct of the victim in not timely reporting the alleged...

US Legislators Reacting to #MeToo

American jurisdictions, notably, California and New York have passed laws dealing with non-disclosure covenants and in the case of New York, the mandatory arbitration of sexual harassment cases. Will Canadian legislators follow? Non-Disclosure Term Void in California The State of California has, as of January 1, 2019, implemented new legislation designed to limit an employer’s ability to keep the allegations of sexual harassment confidential, even in the case of a settlement. The new law applies to contracts made on this date or following and is not retrospective. The law[1] will...

Tort Damages for Sexual Assault – OCA sets at $175,000

Assessing Damages for Sexual Harassment in Civil Tort Claims The Objective The purpose of the damages for the sexual wrongdoing such as assault and battery is not intended solely to compensate purely for physical or mental injuries suffered by the victim. Its goal is broader, intending to “provide solace for the victim’s pain and suffering and loss of enjoyment of life, to vindicate the victim’s dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts”.[1] The Relevant Persuadors The factors to be considered will include[2]: The...

Notional Termination in Human Rights Remedy

Suppose this fact situation: A long-term employee asserts that they have been terminated due to a clear violation of the Human Rights Code; A human rights complaint is filed. Liability is proven or admitted. There is clear evidence to support the employer’s argument that it had planned to close the business or relevant operating division within 3 months. So what is the claim for lost income under the Code? Not much. It will likely be limited to the 3 month period as the employer will be able to successfully...

Human Rights Remedies & Employment Contracts

Lost Income Claim & Severance Clause An employment agreement which sets out a sum to be paid, or notice provided in the event of a termination, will be of no consequence in a lost income assessment in a human rights context. Given the “but-for“ analysis, the basis of the lost income remedy, such a termination provision in the contract will not be an issue in defining the lost income claim[1]. In one case this position not even argued by the employer.[2] Fixed Term Contract Absent unusual circumstances, a fixed term...

Workers’ Comp & Human Rights Claim?

At first blush, it seems untenable that the existence of workers’ compensation entitlement may have any impact on a human rights remedy. There is, however, argument that this may well be so. More importantly, presuming momentarily that workers’ compensation is not a human rights defence, this issue leads to a very important decision as to the forum in which to bring an “action” where the claim is founded on an apparent human rights violation. Step 1 – Defence to Workplace Tort Claims It is clear that workers’ compensation coverage may...

Proposed Class Action for Sexual Harassment Fails

The recent decision[1] of Baltman J. in Rivers v Waterloo Region has denied certification to a proposed claim involving, in part, a plea for sexual harassment, more precisely the tort of harassment. The proposed class was 178 female uniformed officers of the Waterloo Police Service. The case failed for the primary reason that the proposed class members are or were all employees in the bargaining unit, based on the well established case law of Weber v Ontario Hydro. That aspect of the decision is not surprising. Even though the...

Representative Sexual Harassment Human Rights Claim

Human Rights Tribunals Only the statutes of Canada, British Columbia, Manitoba, N.W.T., Saskatchewan and Nunavut allow for a representative human rights complaint. A vivid example of the need for such reform on Ontario can be seen in a recent decision dealing with individuals suffering from a developmental disability. These persons had been a wage rate described as a “training honorarium” of $1 to $1.25 per hour. [1]  Other workers received the statutory minimum. The applicant did continue to receive the Ontario disability support payment while employed without offset. An award...

Civil Class Actions for Sexual Harassment

Careful Strategy As has been discussed elsewhere, there is no civil claim for sexual harassment in its purest form. The plaintiff must make use of the traditional torts such as assault, battery, the intentional infliction of mental suffering, to name the most popular forms of relief, to frame the case. The proposed claim must show a reasonable cause of action to pass the test for certification and hence must pay heed to the developing law on the use of tort claims to plead what is essentially sexual harassment by...

Ontario Tribunal Awards Teenage Intern $75,000 for Harassment

The Ontario Human Rights Tribunal has recently awarded the sum of $75,000 as damages for injured feelings to an unpaid teenage intern for workplace sexual harassment. No issue was raised by the respondents to dispute the assertion that such an unpaid assignment was “employment” to allow for jurisdiction of the Ontario Code. The highest award remains the recent decision ordering $200,000 to a woman who had suffered sexual abuse over an extended time period.[1] A comparable award of $150,000 had been made to a Mexican immigrant employed as a...