By Matthew Benoit*
Has your employer refused to adequately address the sexual harassment you’ve experienced at work? You may want to consider bringing them before the Human Rights Tribunal of Ontario (HRTO), as there have been many cases of sexual harassment where an employer was held liable for having failed to prevent, address and/or redress sexual harassment that occurred in the workplace.
In Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30, the HRTO established ten criteria for evaluating an employer’s response to sexual harassment in the workplace, grouped into three categories. Those criteria are as follows:
Awareness of issues of discrimination/harassment, policy, complaint mechanism and training:
1. Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
2. Was there a suitable anti-discrimination/harassment policy?
3. Was there a proper complaint mechanism in place?
4. Was adequate training given to management and employees?
Post-complaint: seriousness, promptness, taking care of its employees, investigation and action:
5. Once an internal complaint was made, did the employer treat it seriously?
6. Did the employer deal with the matter promptly and sensitively?
7. Did the employer reasonably investigate and act?
Resolution of the complaint (including providing the complainant with a healthy work environment) and communication:
8. Did the employer provide a reasonable resolution in the circumstances?
9. If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment?
10. Did the investigator communicate its findings and actions to the complainant?[ii]
In Laskowska, the HRTO held that the employer acted reasonably in that they had recently enhanced their employee’s awareness of harassment in the workplace, introduced a comprehensive harassment policy, implemented an internal complaint mechanism, properly trained their employees, treated the matter seriously, tended to the harassed worker’s mental and physical health, investigated the incident, and provided the harassed worker with a harassment-free workplace to which to return.[iii]
However, where the harassing party is the owner of the workplace, there may be little that can be said to be done to take reasonable steps to address sexual harassment, especially if they have conducted a sustained pattern of harassment. Such was the case in A.B. v. C.D., 2022 HRTO 890, where the HRTO found that the employer engaged in a pattern of harassment over the entire 5 years he employed the worker.[iv] No steps were taken to respond to his conduct. In that case, the HRTO awarded $31,200 in lost wages and $25,000 for injury to the worker’s dignity, feelings, and self-respect.[v]
Appearing before the HRTO can have significant advantages over pursuing a matter in court. One such advantage is cost savings and the fact that you do not have to worry about having to pay the costs of the other party's lawyer. It is easier to navigate a Tribunal proceeding, and many applicants do not and should not have to retain counsel. Another advantage is that an adjudicator can be more involved in the evidentiary process than a judge; they may ask additional questions of their own to clarify testimony presented to them. That said, there is a significant drawback as well: due to persistent underfunding of tribunals by the province, there is a significant backlog of pending cases.
[i] AB v 2096115 Ontario Inc. cob as Cooksville Hyundai, 2020 HRTO 499 at para 14 [Hyundai].
[ii] Laskowska v Marineland of Canada Ltd., 2005 HRTO 30 at para 59 [Larkowska].
[iii] Ibid, at paras 61-5, 68-71, 78,
[iv] AB v CD, 2022 HRTO 890 at paras 8-39, 115.
[v] Ibid, at para 141
*Matthew Benoit grew up in St. Thomas, Ontario. He received his law degree at the University of Toronto after receiving an HBA and an MA in English at Wilfrid Laurier University and Lakehead University, respectively. He was awarded Lakehead University President’s Award for his academic accomplishment, community service, and contribution to the welfare of the university. His areas of academic interest are comics, Indigenous literature, literary theory, ludonarratives, Medieval and Early Modern literature, and science fiction. His areas of legal interest are administrative, constitutional, and criminal law. He is currently articling at the Northumberland Community Legal Centre and previously summered at the Middlesex County Crown Attorney’s Office. He enjoys academic writing, hiking, gaming, fencing, tennis, and weightlifting.
Disclaimer: This post contains general legal information as of October 15, 2024, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer about your particular situation.
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