Wednesday, February 17, 2016

Court of Appeal's Obiter in Bannister v. General Motors 40 O.R. (3d) 577 Did Not Remove Consent Defence to Sexual Harassment Under the Human Rights Code

     "The trial judge, no doubt, formed the view, from listening to the witnesses, that this plant was a rough environment with abuse and sexual innuendo flowing freely in all direction, and the female employees strong enough to handle the exchanges.  This is probably an apt description of many industrial environments of the past but cannot be tolerated in today's cultural acceptance of gender equality.  It is not a question of the strength or mettle of female employees, or their willingness to do battle.  No female should be called upon to defend their dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct."

     The above-quoted words of Justice of Appeal Carthy in Bannister  v. General Motors [1998] 40 O.R. (3d) 577 (ONCA) - have been interpreted by some tribunals to dispense with the consent defence to sexual harassment under the Ontario Human Rights Code.  Some advocates and tribunals alike have interpreted this passage to mean that the Code requirement that the conduct complained of must be "vexatious" and "unwelcome" to constitute sexual harassment is presumed and consent forms no part of the fault analysis.

     The traditional subjective and objective evaluation which words or conduct were subjected to before a finding that they amounted to sexual harassment is substituted by proponents of this alternative vision to a sort of strict liability type of offence where the focus of the analysis is the subjective interpretation of the complainant alone.  Proponents of this new interpretation make no distinction between acts and utterances which may be found to constitute sexual harassment by a complainant.  Virtually any complaint which could be characterized as "sexualized conduct" by a complainant and which makes them feel "uncomfortable" meets this new test.  For example, stating to a co-worker or subordinate that they lost weight and look good could be interpreted by the recipient as "sexualized conduct" amounting to sexual harassment contrary to the Code.

     Clearly, this new "complainant focused" interpretation of the Ontario Human Rights Code provisions dealing with sexual harassment is wrong in law and a splendid example of the inherent dangers of unchecked deference to administrative tribunals.  The fact that the Bannister decision involved a question of whether an employer had legal cause to dismiss a supervisor whose job it was to enforce their sexual harassment policy and who himself was engaging in such conduct and therefore not discharging his duty is totally lost on the administrative tribunals who have embraced the obiter in Bannister (supra) as a sort of cause celebre.  Bannister (supra) did not involve a dispute between the sexual harassment recipients and the perpetrator or the employer.  Accordingly, Justice of Appeal Carthy's words above are given a meaning and a context which is in fact not the legal principle for which the case stands for at all.  The thrust of the Court of Appeal's decision is that the trial judge failed to properly advise himself on the duties of a supervisor by stating that "I find that the plaintiff's behaviour and language in the workplace was no more and no less than that of the majority of the employees in the security department." Hence, the legal principle flowing from Bannister (supra) has nothing to do with dispensing with the defence of consent under the Ontario Human Rights Code at all and is succinctly articulated in the following quote from the decision:

     "In light of the respondent's general denial of the events complained of, these findings carry an implicit acceptance of the substance of the complainant's evidence and that of the other employee witnesses, coupled with a finding that the respondent was entitled to act as he did because everyone else conducted themselves in a similar fashion.  A supervisor who permits such an atmosphere as the trial judge describes to develop, and then participates in the exchanges as much as anyone else, is a supervisor who is not performing his duties." 

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