Presented on June 19th 2019 to HRPA Grand Valley in Kitchener, ON.

1. For:
HRPA - Grand Valley
Chapter
Date: June 19, 2019
www.rudnerlaw.ca
HR After #MeToo
Stuart Rudner
stuart@rudnerlaw.ca
416.864.8501
Presented by:

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Disclaimer
The user is authorized to use this presentation for the user’s own needs only, and is not
authorized to make copies thereof for sale or for use by others.
This presentation is not provided for the purpose of providing legal advice.
Every situation is unique and involves specific legal issues. If you would like legal
advice with respect to the topics discussed in this presentation, or any Employment
Law matter, we would be pleased to assist you.
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Agenda
1.History of Sexual Harassment in the Workplace
2.Hiring an Alleged/Admitted/Convicted Harasser
3.Investigating Harassment
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History of Sexual Harassment
in the Workplace
● historical tolerance / wilful blindness
● protection of harassers, punishment of those who
complain
● risks seen as “cost of doing business”
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History of Sexual Harassment
in the Workplace
● some evolution through the 80s and 90s
● more awareness of workplace sexual harassment
● still not always taken seriously, rarely formal protections
in place
● complaints were often CLMs
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2010: “An Act to amend the Occupational Health and
Safety Act with respect to violence and harassment in
the workplace and other matters” a/k/a Bill 168
● response to horrific murder after relationship between doctor
and nurse ended
● first legislation in Ontario specifically targeting workplace
harassment, but no focus on sexual harassment
● many new obligations on employers
● safety does not only relate to loose floorboards anymore
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2016: Sexual Violence and Harassment
Action Plan Act (Bill 132)
● previous Violence and harassment provisions did not
specifically address workplace sexual harassment
● provincial government began attacking the problem
head on - advertising campaign, new law
● many new obligations on employers, proactive and
responsive
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Bill 132
Workplace Harassment now includes Workplace Sexual Harassment:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace
because of sex, sexual orientation, gender identity or gender expression, where the course of
comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or
advance is in a position to confer, grant or deny a benefit or advancement to the worker and the
person knows or ought reasonably to know that the solicitation or advance is unwelcome;
("harcèlement sexuel au travail")
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New Obligations for Employers
v
● develop and maintain a workplace harassment program
● establish a complaint mechanism for reporting complaints or
incidents of workplace harassment
● conduct investigation whenever it becomes aware of a complaint or
incident of workplace harassment
● maintain confidentiality of information
● notify complainant and respondent in writing of the results of an
investigation and any corrective action taken
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Increased Fines under the OHSA
As of December 14, 2017, fines for violations of the OHSA:
● fine for individuals increased from $25,000.00 to $100,000
● fine for corporations increased from $500,000.00 to $1,500,000.00
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October
2017

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The Rush to Judgment
● overnight, companies went from refusing to believe
the complainant
● rarely bothering to investigate
● to immediately cutting ties with the accused
● rarely bothering to investigate

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The Right Way

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OHSA: Employer Responsibilities
● MUST have harassment policy including workplace sexual harassment
● MUST ensure all workers are thoroughly trained on policy
● MUST have reporting mechanism where employees can complain about
incidents
● MUST have thorough procedure for investigating incidents
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Lessons we can learn?
● employers cannot ignore the warning signs or the direct complaints
● Ontario employers have a responsibility to investigate incidents or even
suspicion of workplace sexual harassment
● also have obligation to accused to investigate fairly
● investigations are critical
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When the Harasser Returns
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John Lasseter
● one of the biggest names in Disney animation - directed Toy Story, Cars
● announced a ‘leave of absence’ in 2018, same day reports surfaced about
a “pattern of alleged misconduct”
● left Disney at the end of 2018, immediately hired by Skydance Animation
● Skydance attempted to place him on a tight leash via his contract
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John Lasseter
● Actress Emma Thompson publicly refused to work with Lasseter:
If a man has been touching women inappropriately for decades, why would a woman want to
work for him if the only reason he’s not touching them inappropriately now is that it says in his
contract that he must behave “professionally”?
I am well aware that centuries of entitlement to women’s bodies whether they like it or not is not
going to change overnight. Or in a year. But I am also aware that if people who have spoken out
— like me — do not take this sort of a stand then things are very unlikely to change at anything
like the pace required to protect my daughter’s generation.
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Closer to home: Colistro v. TBayTel
FACTS:
● Linda Colistro worked for TBayTel as an administrator
● 2007 - Company announces new VP hire - Colistro says she’s “on the
verge of a nervous breakdown” and takes sick leave
● company learns VP was accused of sexually harassing Colistro 11 years
prior
● company hires VP anyway, says they’ll discuss it with him
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Constructive Dismissal?

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Colisto v. TBayTel
● trial judge: constructive dismissal
○ Colistro was re-victimized by hiring
● awarded 12 months’ pay in lieu of notice + moral damages = $100,000
● Court of Appeal agreed that Colistro was constructively dismissed
● hiring proved Company had no intention of being bound by contract
● BUT - Colistro denied $3M of intentional infliction of mental suffering
● she was ordered to pay $200,000 in costs
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Colisto v. TBayTel
Lessons Learned:
● Colistro lost money in the end because of the structure of her claim, BUT
● hiring someone known to have harassed was constructive dismissal
● both trial judge and Court of Appeal agreed that “a reasonable person
would see Colistro’s continued employment as intolerable”
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Points to Ponder
1. you receive an application from someone that you “heard” had been let
go a year ago due to sexual harassment
2.you hire a new manager, and a long-standing member of the team
comes to you to tell you that he previously sexually harassed her at
another company, which is why she left, and is already at it again
3.you get a call from someone claiming that your new hire harassed her,
which is why he “left” his last job
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Employees’ Rights
● OHSA guarantees right to safe workplace free from hazards (incl
harassment)
● employers must take reasonable steps to address safety risks
● employees entitled to information about potentially violent coworkers
● yet new employer may never know about previous allegations
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Responding to Allegations/Suspicion
First Steps in the Investigation Process
● do not ignore
● contact your Employment Lawyer
● consult your policy / collective agreement
● determine who is going to conduct the investigation
○ internal or external third party investigator?
● develop an investigation plan
remember: investigation is NOT a prosecution
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Responding to Allegations
● notify both parties
● require but do not promise confidentiality
● be mindful of complainant and accused
○ensure safe work environment
○interim suspension / transfer?
○consider referral to EAP
● warn of repercussions for interference, bad faith
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How not to Respond: Doyle v Zochem Inc. (2017)
● Doyle: plant supervisor, health & safety coordinator, only woman in the
plant
● repeated sexual harassment from plant maintenance manager,
including: staring at her breasts and miming taking a picture of them,
repeatedly telling her she needed to get “laid”, or needed “a little
pounding”, etc.
● reported sexual harassment, employer did a “cursory” investigation
● she was assured that her job was secure, but dismissed one week later
(decision had already been made)
● suffered serious mental distress as a result
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Doyle v Zochem Inc. (2017)
Award:
● damages for wrongful dismissal: $55,849.99;
● damages pursuant to the Human Rights Code: $25,000.00; and
● moral damages: $60,000.00
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Hallmarks of a Good Investigation
● unbiased
● thorough
● timely
● well documented
● defensible conclusions
● recommendations & action items
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OHSA does not mandate format of investigations -
must be “appropriate in the circumstances”

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Interviewing the Complainant/Respondent and
Witnesses
● interview complainant
● do not make promises of confidentiality you cannot keep
○ but promise reasonable efforts
● collect
○ all relevant details
○ evidence with respect to incident(s) (e.g. emails,
text messages, photos, etc.) and
○ names and contact information of witnesses
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Interviewing
Interviews
● respondent must be given opportunity to respond to allegations
● witnesses must also be interviewed
● additional evidence collected
● “is there anything else I should be aware of?”
● keep detailed notes
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Conducting Investigations
Reaching a Conclusion
● once all evidence is collected, investigator must reach
a conclusion
● assess credibility
○ compare to evidence
○ what has “air of reality”?
● justify conclusion
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Preparing a Report
● background / allegations
● mandate
● process
● documents
● witnesses
● policies
● evidence
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After the Investigation
Communicating the Results
● “complainant and respondent must be informed, in
writing, of results of investigation and any corrective
action to be taken”
● does not require providing copy of investigation report?
● consider need for discipline, training, etc
● assess policies & procedures in light of experience
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Questions?
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THANK YOU!
Feel free to contact us if we can be of assistance. We’d be glad to speak with you.
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