In an arbitration case that has spanned several years, a tenured professor at Toronto Metropolitan University (TMU) has been awarded $30,000 in damages as a result of allegations of harassment, intimidation, and safety violations.
The arbitrator’s decision shed light on a complex and protracted dispute, revealing multiple failures by the university to adequately address these issues, alongside breaches of the collective agreement and the Ontario Health and Safety Act (OHSA).
Overview
The case focused primarily on two grievances, one filed in September 2017 and another in October 2018.
The first alleged that TMU failed in its obligations to protect the health and safety of the professor under the OHSA with respect to harassing, intimidating, and bullying behaviour by a colleague. The second alleged that TMU failed to investigate the grievor’s allegations of harassment on at least four occasions in breach of its obligations under the collective agreement and the OHSA.
An earlier arbitration award, issued on March 27, 2023, had already found the university in violation of its obligations during several investigations. The ruling ran through a number of issues and the remedies, as follows. (Editor’s note: This article doesn’t cover every issue – see full case for details. Link at bottom.)
The Thomlinson investigation
The Thomlinson investigation, which was conducted from 2015 to 2017, satisfied the university’s obligation, the arbitrator said.
However, TMU failed in its followup to the report in several aspects. Upon receiving the report, the university was obligated to to provide the grievor with the results of the investigation and advise of any corrective action taken.
“The university failed to report either in a timely manner,” the arbitrator said.
TMU argued this breach was sufficiently remedied by a declaration, and that a financial remedy was not warranted. The arbitrator disagreed.
“The right to be informed is an important part of the OHSA statutory scheme. Based on the evidence of the grievor, I conclude that she suffered distress from the failure of the university to advise of the outcome of the Thomlinson investigation in a timely matter as required by the OHSA,” it said.
Failure to reassign offices
The grievor and the respondent shared neighboring offices, with the grievor requesting reassignment due to harassment concerns.
“Based on her perception of harassment, the grievor advised the university of her discomfort in sitting beside the respondent and requested that one of their offices be moved,” the arbitrator said. “The grievor was moved to work spaces other than her designated office in the school. The respondent was not moved.”
The university’s reluctance to consider reassignment after the Thomlinson report was deemed problematic, sending the message that the grievor was at fault.
The March 2023 Award concluded that it was the university’s responsibility to move the respondent’s office to ensure the grievor’s safety. The university’s actions were characterized as arbitrary and unfair, causing mental distress to the grievor, and warranted a financial remedy.
Failure to conduct workplace harassment investigations
The March 2023 Award made a declaration that the university was in breach of its obligations under the Ontario Health and Safety Act (OHSA) regarding complaints filed in both 2017 and 2018.
The most pressing issue revolved around a series of reports made by the grievor, outlining alleged harassment by the respondent. These complaints were not investigated through the lens of harassment, raising concerns about the university’s approach to addressing workplace concerns.
The grievor’s reports reveal a disturbing pattern of alleged harassment:
April 6, 2017: The grievor reported ongoing harassment by the respondent, including being followed at a distance and subjected to intimidating glares.
Dec. 13, 2016: A prior incident was mentioned when the grievor was startled upon entering a room where the respondent sat in the dark.
April 11, 2017: During a telephone interview, the grievor detailed ongoing harassment concerns, including the respondent’s presence in her class area, intentional startling, hostile approaches, possible online harassment, removal of her office posters, and even being followed by the respondent in his car.
May 16, 2017: The grievor raised concerns about her positive space sticker being defaced in a meeting.
March 13, 2018: The grievor made a report alleging the removal of posters she had put up in her workplace, describing it as harassment. She also cited instances of being stared at, startled in dark rooms, followed in stairwells, and even feeling as though the respondent showed up at her home. An unsettling incident of “road rage” involving the respondent was also reported.
In response to these unaddressed complaints, TMU proposed a remedy: a third-party investigator would assess the identified complaints through a workplace harassment lens.
This investigator would have access to all evidence from the hearing, including university and grievor records. The assessment would determine, on a balance of probabilities, whether the respondent engaged in ongoing workplace harassment. A summary report of the investigator’s findings would be shared with the grievor and the Association.
The Association, though, balked at the idea. They argued that a truncated investigation process would not be a suitable replacement for a comprehensive workplace harassment investigation.
In light of the challenges in conducting a meaningful investigation at this late stage, the Association contended that if a proper investigation into the harassment complaints cannot be carried out, the damages requested should be increased to account for the university’s failure to address these issues in a timely and appropriate manner.
Damages
The Association’s initial damages request was twofold. Firstly, they sought $55,000 in damages for injury to dignity, feelings, and self-respect as a result of these breaches.
Secondly, an additional $10,000 in damages was requested for TMU’s failure to investigate Code allegations, address workplace harassment, and rectify what they referred to as a “poisoned work environment.”
The grievor’s evidence established that each of the breaches, whether related to the collective agreement, OHSA, or the Code, caused her significant mental distress. Teasing apart the impact of perceived harassment from the failure to investigate her allegations is challenging, but it’s undeniable that her dignity and self-esteem were undermined, negatively affecting her health and overall well-being.
Delays in the process, failure to provide timely results of complaints, and issues related to office location exacerbated her mental distress.
The arbitrator noted that a determination of harassment was not necessary to award damages. The grievor had suffered significant mental distress due to the university’s investigative failures.
After a thorough review of various cases provided to counsel, a general damages award of $30,000 was deemed appropriate. These damages aim to compensate for her mental distress, injury to dignity and self-esteem, and the negative impacts on her health and well-being resulting from the breaches of the collective agreement, OHSA, and the Code.
Punitive damages and other remedies
Punitive damages were not awarded, as the University’s conduct was not deemed sufficiently outrageous or egregious to merit such an award.
The request for human rights and harassment prevention training was declined, with the arbitrator noting that the university had already made changes to its reporting of harassment complaints, and further modifications may result from this litigation.
TMU was directed to pay the grievor $30,000 in general damages on or before Dec. 1, 2023. The University is also directed to review the Grievor’s 2017 complaints made to Human Rights Services (HRS). If the matter is not referred for formal investigation, the arbitrator remains seized to determine any further remedies that should be ordered.
For more information, see Toronto Metropolitan University v Toronto Metropolitan Faculty Association, 2023 CanLII 93288 (ON LA)
