An Ontario woman has been awarded $55,000 in damages by a human rights tribunal after it ruled she had been sexually harassed on the job by her team leader.
The complainant, KSM, was 22 years old at the time of the incident and her boss, SS, was about 40 to 50 years old. The tribunal’s ruling didn’t include the name of their employer or her exact job title, but noted that SS was her team leader on cleaning projects and was in a position of authority.
Team leader didn’t respond, participate in proceedings
The case began on April 8, 2019, when the Tribunal issued a Notice of Application to the respondent, SS. Despite multiple attempts to contact SS, including sending notices by email and regular mail, he failed to respond or participate in the proceedings.
On June 18, 2019, the Tribunal issued a warning to SS, stating that failure to respond could result in deeming him to have accepted all the allegations and waiving his rights to further notice or participation. Despite this warning, SS remained non-responsive.
Further notices were sent to SS on Oct. 24, 2019, and Dec.18, 2020, urging him to file a response, but to no avail. Eventually, in the Interim Decision 2022 HRTO 1218, the Tribunal declared SS to be in default and made orders reflecting his failure to participate.
What happened
A two-day merits hearing took place on March 28-29, 2023, where KSM and her brother testified as witnesses. KSM, who had worked alongside SS at the company, alleged he had sexually harassed and assaulted her between January and April 2018.
She claimed the harassment had persisted despite her objections and that the assault had occurred at the workplace.
During her testimony, KSM provided details of the inappropriate comments made by SS, expressing discomfort and anxiety caused by his behavior. She also described the assault incident, where SS had forcibly kissed her against a wall, despite her repeated pleas for him to stop.
The applicant reported the incident to both her friend and a co-worker, as well as to the company and police.
The Tribunal, considering the applicant’s testimony and the evidence presented, found her allegations to be consistent and credible. Since SS had chosen not to participate in the process, the Tribunal relied solely on the applicant’s materials and testimony.
Violation of Human Rights Code
Based on the findings, the Tribunal concluded SS had violated the Human Rights Code, specifically sections related to equal treatment in employment, freedom from workplace harassment, and freedom from sexual solicitation or advance by a person in a position of power.
The applicant’s submissions emphasized the emotional and psychological impact of the harassment and assault, which had left her depressed, fearful, and isolated. She requested compensation for the violation of her dignity, feelings, and self-respect.
In its analysis, the Tribunal referred to the legal framework established by the Code and previous court decisions. It recognized sexual harassment as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences.
The Tribunal considered the Supreme Court of Canada’s definition of workplace sexual harassment in Janszen v. Platy Enterprises as a reference point.
Tribunal rules in KSM’s favour
Given SS’s failure to participate in the proceedings, the Tribunal upheld the applicant’s allegations and ruled in her favor.
“(KSM) testified that she was a vulnerable worker at the age of 22 who was trying to provide for herself and her family and to improve her life circumstances when these incidents happened,” the Tribunal said.
“The applicant also testified that she objected to the sexual comments made by the respondent and declined his requests to see her outside of work. She submitted that she strongly resisted the physical assault and pushed the respondent back,” it said.
It settled on $55,000 for compensation for the harm caused to her dignity, feelings, and self-respect. It also noted that SS would be required to pay post-judgement interest, at the rate of 6.0%, if they are unpaid 30 days from the date of the decision.
For more information, see Sharpe-McNeil v. Swaby, 2023 HRTO 872 (CanLII)
