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.