Do All Sexual Harassment Cases Warrant Termination?

In a previous post, we looked at judgments from the Ontario Court of Appeal that deemed every instance of sexual harassment to be serious in an employment context. In a recent judgment, the British Columbia Court of Appeal (BCCA) applied the principles set in an earlier decision of the Ontario Superior Court of Justice (Alleyne v. Gateway Co-operative Homes Inc., 2001 CanLII 28308 (ON SC)), and found that workplace sexual harassment should rather be assessed on a spectrum.

Summary

In Café La Foret Ltd. v. Cho, 2023 BCCA 354, the employer appealed an award of damages made against it for the wrongful dismissal of an employee who was found to have sexually harassed a subordinate. The singularity of this case lies in the examination of the factors that should be considered when determining if workplace sexual harassment justifies termination.

The BCCA allowed the appeal in part. However, it maintained the trial court’s decision that the employer did not have just cause to terminate the respondent.

The Facts of the Case

The trial court ruled that the employee engaged in sexual harassment by touching a subordinate on two separate occasions: once on her shoulder and upper back, and another time on her buttock. The respondent claimed he was trying to describe a therapeutic massage he had received and discuss lower back pain with his female subordinate. Nonetheless, the touching was deemed unwanted, inappropriate, and having sexual undertones. Following an investigation, the employer asked the respondent to sign an affidavit in which he was referred to as a ‘sexual offender.’ When the plaintiff declined to sign it, the employer terminated his employment for just cause.

The Judgement on Appeal

The BCCA concurred with the trial court’s assessment that the behaviour in question fell within the lower range on the spectrum of workplace sexual harassment, and that it did not warrant the respondent’s dismissal. It noted that the conduct was “relatively minor on the range of physical contact which extends to more prolonged touching, more extensive body contact, forced kissing and fondling.”

Evaluating just cause for dismissal involves a contextual approach (McKinley v. BC Tel, 2001 SCC 38 at para. 51). Among other factors, the BCCA reviewed the trial court’s assessment of the perpetrator’s intentions.  In essence, the perpetrator’s intentions do not determine whether the physical contact qualifies as sexual harassment, and they do not alter the seriousness of the harassment. However, the employee’s  intentions are one aspect of the broader context that should be taken into account when assessing whether his behavior amounts to cause for termination. Another factor to consider in assessing the severity of the misconduct is whether the employer initially deemed the relationship as irreparable or potentially salvageable, depending on the employee’s actions like taking responsibility, showing remorse, apologizing, or making amends.

“The employee’s willingness or lack of willingness to engage in remedying the misconduct will be a significant factor, as will the ultimate success or failure of such efforts. Remorse and an apology can in some circumstances mitigate the misconduct and restore the relationship. Without that successful remedial action, the unmitigated misconduct, standing alone, may well be so corrosive as to break the employment relationship and justify dismissal.”

In sum, this decision sheds light on an essential distinction – not all cases of harassment, even those involving sexual harassment, necessarily justify termination. This case underscores that context matters and emphasizes that when dealing with harassment issues, including sexual harassment, a careful assessment of the circumstances is crucial. Not all situations call for the same response, and understanding the nuances is key. It is worth noting that despite those nuances, both the BCCA and trial court stressed that no matter where the conduct falls on the spectrum, it remains “entirely inappropriate.”

Concluding Thoughts

Interestingly, the decision in Café La Foret Ltd. v. Cho diverges from a recent line of decisions from the Ontario Court of Appeal (ONCA), including Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) and Hucsko v. A.O. Smith Enterprises Limited (2021 ONCA 728). In these cases, the ONCA refused to assess the gravity of the incident on a spectrum, and preferred a uniform approach that treats every instance of sexual harassment as equally serious.

It will be important to monitor how Canadian courts will decide on future cases of sexual harassment in the employment context. The treatment of sexual harassment cases has garnered significant attention, not only within the courtroom but in society at large. This is especially significant in a context where an increasing number of employers have implemented stringent zero-tolerance policies regarding all forms of sexual harassment.