On April 24, 2020, the Human Rights Tribunal of Ontario (the “Tribunal”) issued an important decision in NK v Botuik, which involves sexual harassment in the workplace and touches upon a number of important legal issues, including consent, an applicant’s individual circumstances and history, the liability of personal respondents in sexual harassment cases, the test for sexual harassment and solicitation, and the appropriate quantum of damages in egregious sexual harassment cases.
On January 28, 2016, NK (the “Applicant”) commenced employment as a Direct Care Worker at Alan Stewart Homes Limited (the “Employer”), a corporation that owns and operates a series of group homes that assist individuals who are unable to live on their own.
The Applicant reported directly to Jeffrey Botuik (the “Respondent” or “Mr. Botuik”), the supervisor of the location where the Applicant worked. Shortly after the Applicant commenced employment with the Employer, and while she was still a probationary employee, the Respondent began making inappropriate remarks and gestures towards her, which included brushing dirt off her pants and commenting on her scent. The Respondent’s conduct quickly escalated to unsolicited phone calls and text messages that were unrelated to the Applicant’s employment. The Respondent eventually pressured the Applicant into giving him a massage in the workplace when all the other employees and residents were away on an excursion. When the other employees and residents returned, the Respondent kissed the Applicant before anyone could see. From that point onwards, the Respondent’s physical and sexual advances escalated drastically. The Respondent began to grope, slap and fondle the Applicant’s body, rub his body against hers, and kiss her. The Respondent was careful to ensure that other employees did not see his sexual activity towards the Applicant, and he would often corner her in the basement of the workplace when performing these actions. The Respondent’s conduct continued to escalate as he pressured the Applicant to engage in oral sex and sexual intercourse with him on several occasions at the workplace. The Respondent also arranged to see the Applicant outside of the workplace.
The Applicant’s evidence indicated that the Respondent frequently referenced his position of power in the workplace by noting that he had the ability to schedule her hours and determine how many hours she worked, which could affect her income. He also frequently noted that he had the ability to “make things happen” in the workplace, implying that he had the ability to terminate her employment.
The Applicant testified that she felt coerced into complying with the Respondent’s sexual demands or advances. The Respondent consistently ignored the Applicant’s objections towards his sexual advances. The Applicant also testified that she greatly valued her employment because of her previous history with drug addiction, inconsistent employment, and sexual abuse from her childhood. She stated that it was important for her to maintain her employment as she was the mother to a young child who was in her care. Accordingly, the Applicant stated that she felt “trapped” by the Respondent because of the power he held over her employment.
Eventually, following the completion of her probationary period, the Applicant transferred to another location for work in an attempt to avoid the Respondent. While her interactions with the Respondent decreased, they did not stop entirely. One evening, the Applicant invited the Respondent to her home for dinner where she planned to permanently end their coercive sexual relationship. The Respondent became enraged and sexually assaulted the Applicant. Later that night, after the Respondent had left the Applicant’s home, the police arrested the Applicant because the Respondent had accused her of sexually assaulting him. Upon her release, the Applicant went to a hospital and was examined for sexual assault.
The Employer hired a third party to investigate the relationship between the Applicant and the Respondent. The investigator determined that inappropriate activity took place at work unbeknownst to the Employer, who was therefore unable to do anything about it. The Employer proceeded to terminate the employment of both the Applicant and the Respondent. As a result of the pending criminal charges against the Applicant, she was unable to work in her field as a counsellor for vulnerable populations.
The Applicant had initially identified the Employer as a corporate respondent as well as Mr. Botuik as an individual respondent. The Applicant and Employer reached a resolution and the Applicant withdrew her application in relation to the Employer, but maintained her application as it related to Mr. Botuik.
In order to establish a case of sexual harassment, the Tribunal requires an applicant to prove the following on a balance of probabilities:
- That the respondent was the applicant’s employer, employer’s agent or another employee;
- That the respondent harassed the applicant by engaging in a course of vexatious comment or conduct towards the applicant that was known or ought reasonably to have been known to be unwelcome;
- That the respondent harassed the applicant in the workplace; and
- That the respondent harassed the applicant because of their sex.
The Respondent did not attend the hearing and did not provide any evidence or submissions, so the Applicant’s evidence was uncontradicted. The Tribunal determined that the Applicant was credible and reliable, and had met the test for demonstrating sexual harassment.
On the issue of consent, the Tribunal determined that the Respondent’s behaviour was either known, or ought reasonably to have been known, to be unwelcome. The Respondent consistently ignored the Applicant’s objections to his sexual advances to the point where the Applicant eventually felt that it was useless to continue objecting and she stopped doing so. The Tribunal found that a reasonable person would know that the more serious sexual activity was unwelcome even if it was not expressly objected because the lesser activities were clearly objected to. The Tribunal further found that the Respondent was in a position to confer, grant or deny a benefit or advancement to the Applicant, which, in this case, was the number of hours she could work and her continued employment with the Employer. Accordingly, while some parts of the relationship between the Applicant and Respondent may have appeared consensual, the Tribunal held that this was a “manufactured consent” that resulted from the Applicant being bullied and mentally broken down into compliance out of fear of the consequences of refusing. The Tribunal also determined that the sexual assault that took place in the Applicant’s home stemmed from the forced relationship created by the Respondent in the workplace.
In determining the award for the Applicant, the Tribunal reiterated that its remedial powers are not punitive in nature. In assessing the quantum of damages for injury to dignity, feelings and self-respect, the Tribunal considers the following factors: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment. The Tribunal must also be careful to not set the damages too low, as that would trivialize the social importance of the Code.
The Tribunal noted that the Applicant’s experiences with the Respondent were among the “most serious and egregious ever brought before this Tribunal” and that the highest awards granted by the Tribunal have been in matters relating to sexual harassment, solicitation, and advances involving sexual conduct by a person in a position of power over a vulnerable employee. The Tribunal found that, from the very outset of the Applicant’s employment, the Respondent targeted and “groomed” her with the intention of having sex with her.
The Tribunal considered the Respondent’s egregious sexual harassment and solicitation which resulted in an exceptionally damaging affront to the Applicant’s dignity. The Tribunal accepted the Applicant’s evidence that she felt helpless, humiliated and numb, and that her self-worth had fallen to a point where the Respondent’s exploitation of her began to feel natural. The Applicant’s trauma following the sexual assault made it difficult for her to sleep or feel safe in her own home, and she struggled to function or take care of herself and her son. The Applicant participated in counselling and was prescribed anti-depressants. The impact of the Respondent’s conduct on the Applicant served to elevate the quantum of the compensatory damages.
The Tribunal also considered the effect of the criminal charges that resulted from the Respondent’s accusation of sexual assault, which prevented the Applicant from being able to work in her field for ten months. Furthermore, the Tribunal considered the Applicant’s personal history and life circumstances, as a mother and a survivor of sexual assault as a child. The Tribunal found that the Respondent exploited the importance that the Applicant placed on maintaining a well-paying job because of her need to provide for her son and herself, and her desire to maintain stability in her life which was previously riddled with domestic and sexual abuse and drug addiction. The Tribunal noted that this was a rare situation where the appropriate compensation award exceeded the amount requested by the Applicant and ultimately ordered the Respondent to pay $170,000.00 to the Applicant as compensation for injury to dignity, feelings and self-respect.
About the author
Rayaz Khan is a labour and employment lawyer at Hicks Morley Hamilton Stewart Storie LLP's Toronto office, where he advises private and public sector employers on a wide range of human rights and employment law issues. He can be reached by visiting Hicks Morley’s website: www.hicksmorley.com.
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