Is there a less severe incident of sexual harassment? 

Author: Hannah MacLean Reaburn

Reviewed by: Me Alina-Mona Pase

Developments at the Court of Appeal for Ontario tell us « No »

Two (2) recent Ontario decisions demonstrate that every incident of sexual harassment in the workplace is to be taken seriously, by both employers and the employees found to have engaged in sexual harassment.

Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) upheld the Ontario Superior Court (ONSC)’s decision that the dismissal of an employee in a managerial role after a single incident of sexual harassment against a female co-worker (who at times was reporting to that manager) was with just cause for summary dismissal – even with the company’s progressive discipline policy in place.

Hucsko v. A.O. Smith Enterprises Limited (2021 ONCA 728) overturned the ONSC’s decision and confirmed the employer’s finding that four sexual comments made to a female coworker justified an irreparable breakdown in the employment relationship.

Notably, in both cases, the Court of Appeal for Ontario focused not only on the severity of the incidents, but also on the responses of the employees who were found to have engaged in sexual harassment (the “respondents”) as “mitigating” factors for the offending action. This confirms a shift away from the practice of assessing the seriousness of incidents of sexual harassment on a spectrum, to now taking all incidents just as seriously.

In both cases, the respondents’ lack of remorse for their actions was important in the Court’s findings. Though the respondent in Render apologized, he confirmed at trial that he still believed that his actions did not constitute sexual harassment. In Huckso, the respondent refused to apologize to the complainant as he would not recognize that his actions constituted sexual harassment either. This was weighed into the decisions of the Court in both cases, demonstrating that not only do courts recognize the inherent intolerability and severity of sexual harassment in all instances, but also that they require this recognition from responding parties.

In Render, the workplace had a “zero tolerance” policy for harassment and discrimination, and a progressive discipline policy. Even with the latter in place, the employer was affirmed in their right to summarily terminate the responding party. Feldman J.A. stated that

« . . . this was a most unfortunate situation that arose out of an overly familiar and, as a result, inappropriate workplace atmosphere that was allowed to get out of hand. As this court said in Bannister almost 25 years ago, it is a workplace atmosphere that can no longer be tolerated. Although some may perceive it to be benign and all in good fun, those on the receiving end of personal “jokes” do not view it that way. And when things go too far, as they did in this case, the legal consequences can be severe. Every workplace should be based on mutual respect among coworkers. An atmosphere of mutual respect will naturally generate the boundaries of behaviour that should not be crossed. » (Render at para. 70)

In reiterating the Bannister finding from 25 years earlier, Render demonstrates that inappropriate workplace atmospheres are not a new issue for employers, nor for the courts, and that they are a severe issue that must be taken seriously.

Latitude Management is a multidisciplinary firm with a focus on investigations, mediations, training and consultation regarding issues arising from harassment, violence and discrimination in the workplace. Please do not hesitate to contact us to learn more.