A human rights complaint alleging workplace sexual harassment at a Subway restaurant in Fort McMurray, Alta., has been dismissed after the Alberta Human Rights Tribunal found the physical contact experienced by the complainant was neither intentional nor sexual in nature.
The tribunal upheld the Director’s decision to dismiss the complaint, ruling it had “no reasonable prospect of success” based on the evidence presented.
The case involved a former Subway employee who alleged she was “harassed and assaulted every working day” during her employment from September 2021 to March 2022. Her complaints included allegations that coworkers touched her body, intentionally got in her way, and that she was groped on numerous occasions, sometimes in front of customers.
The tribunal’s decision highlighted that while physical contact did occur in the workplace, the evidence did not support claims that it was intentional or sexually motivated.
“The information provided by the complainant does not support a finding of sexual harassment or any other kind of discrimination on the basis of gender,” wrote the tribunal in its decision. “While I find that there was physical contact amongst the employees, the information does not support that any of this contact was intentional.”
Workspace constraints central to case
The workplace environment played a crucial role in the tribunal’s assessment. The respondent described the Subway restaurant as having a tight workspace where “multiple employees work side-by-side on a line, assembling sandwiches with ingredients lined up in front of them.”
The decision noted that in this environment, “it is very common that employees will brush across each others’ hands when staff are working quickly and reaching over one another.”
The physical layout behind the sandwich assembly line, containing ovens and storage fixtures, created even more constraints. According to the respondent, “it is impossible for employees to pass behind one another without accidentally bumping into one another especially when there are 3 to 4 employees working at one time and the store is busy.”
The complainant acknowledged these space limitations but maintained that employees should not have to work in “an environment where there is constant touching and bumping.”
Video evidence contradicted allegations
One specific incident received particular attention in the ruling. The complainant alleged that her area manager “bumped into her with considerable force” and later added that during this incident, the manager had “grabbed her ass” and put a hand on her shoulder.
The respondent submitted video footage of this incident, which the tribunal found supported the manager’s account that she had accidentally bumped into the complainant while carrying oven trays through a narrow passageway. When confronted with accusations of sexual assault, the manager had ensured that the surveillance video was preserved.
“Although the discussion between the complainant and the area manager cannot be heard in the video, the video corroborates the respondent’s explanation of the incident,” the tribunal noted.
Apologies offered for inadvertent contact
The decision highlighted that by the complainant’s own account, when she reported incidents to coworkers, they indicated they were unaware they had touched her and offered apologies.
In one instance, when told she had touched the complainant inappropriately, a coworker “indicated that she did not know that she had touched the complainant.” In another case involving contact with the complainant’s breast, the coworker “said that he was sorry.” A third employee apologized and “said that she would try her best to make sure it would not happen again.”
These responses led the tribunal to conclude: “By the complainant’s own reporting, staff apologized and noted that they were unaware that they had brushed against her.”
Other allegations dismissed
The complaint also included several allegations that fell outside the tribunal’s jurisdiction or lacked sufficient evidence:
- Claims about improper payment at another restaurant were dismissed because they had no connection to any protected grounds under the Alberta Human Rights Act.
- An allegation that a cartoon character in a training video with the same name as the complainant was created to humiliate her was rejected after the respondent clarified the video “existed long before the complainant was hired.”
- Claims that a coworker “stalked her outside of the workplace” and that coworkers “practiced witchcraft, placing a curse on both her and the things that they gave her as a Christmas gift” were raised but not substantiated with specific information.
Performance issues preceded termination
The tribunal noted that the complainant’s employment was terminated in March 2022 following documented performance concerns. The respondent had given the complainant a written warning in February 2022 “with respect to her attitude, her pace of work, her conduct and issues with respect to tardiness.”
Additional concerns were raised about the time taken to complete closing tasks, with the respondent stating that “no overtime beyond 11 pm would be authorized.” The employment was ultimately terminated after what the respondent described as a verbally abusive phone call, citing that “the complainant was terminated because she was not meeting performance expectations.”
The complainant had alleged that she received a termination warning after reporting harassment, but the tribunal found that her complaints to management came after she had already received performance warnings.
Threshold for sexual harassment not met
In its analysis, the tribunal referred to the Supreme Court of Canada’s definition of sexual harassment from Janzen v Platy Enterprise Ltd., noting that for conduct to constitute sexual harassment, it “must be unwelcome, it must be of a sexual nature, and it must negatively affect the work environment.”
After reviewing all available evidence, the tribunal concluded that the physical contact that occurred in the workplace did not meet this threshold, stating: “The information does not support that the conduct was of a sexual nature.”
For more information, see Saforo v Subway (Fort McMurray), 2025 AHRC 55 (CanLII).
