Friday, March 3, 2017

Presenting Counsel's Top Three Cases in Re Massiah 2015 Liability Case

1.   Smith   v.  Menzies Chrysler Inc. [2009] O.H.R.T.C. No. 1906


   The complainant, William David Smith, alleged that in 2006, while he was employed by Menzies Chrysler as a used car salesperson, his co-worker Tom Graham engaged in a course of sexually vexatious comments and conduct which poisoned the work environment. The complainant alleged that his supervisor, Mark Lyons, was complicit in this harassment and that Clark Menzies, dealership owner and manager of the used car sales department, knew of the discrimination and harassment. The complainant alleged that he complained about the harassment to no avail and, ultimately, he was dismissed because of his complaints.  The complainant also alleged that he was subjected to further reprisals after he filed his human rights complaint. (see para 6)

18.   The complainant's human rights complaint alleges that, among other things, Graham made numerous verbal and non-verbal sexual suggestions, including exposing and extending his penis towards the complainant and frequently watching loud pornography.  The complainant alleges that he was summarily dismissed as reprisal because of his complaints regarding Graham's conduct.  At the hearing, the complainant described several specif situations of alleged harassment that occurred in his third period of employment;

i.   While seated at his desk within the first week of employment, Graham sexually solicited a young female customer and told her not to worry about the complainant's presence at the other desk, stating the the complainant was "a moron";

ii   Early in the complainant's employment, Graham removed his pants in the complainant's presence and proceeded (naked from the waist down) to dry his hair in the hallway.  The complainant expressed concerns to Lyons about Graham's conduct and requested to be moved to a cubicle office. Throughout the complainant's employment, Graham continued this dressing regime and while doing so, taunted the complainant by thrusting and gyrating his hips;

iii   Early in the employment, he, Graham, and Lyon were standing in the trailer hallway and Clark Menzies was in his office.  Graham exposed his penis to the complainant.  Lyons remarked to the complainant, "why don't you fluff it up for him" and Graham said "would you ever suck a dick you didn't like".  Both Graham and Lyons laughed at the complainant.  The complainant advised Menzies about his concerns regarding this conduct and Menzies replied that is was "just fun" and "horseplay.:;

iv.   While attending to a customer in his cubicle office, loud grunting noises associated with pornography could be heard coming from Graham's desk on the other side of the partition wall. The complainant's customer became angry and left.  The complainant advised Lyons about his concerns regarding loud pornography interfering with his work;

v.   On one occasion, Graham told the complainant that he had left a gift for complainant on his desk.  The complainant found a beer bottle filled with urine on his desk and angrily complained to Lyons;

vi.   On one occasion, Graham told the complainant the he had masterbated and left ejaculate at the complainant's desk and asked the complainant if the complainant would like him to do it again.  On his desk, the complainant found (and later cleaned) gelatinous spots;

vii.   In September 2006, while attending to customers in his cubicle office, the complainant heard loud laughter and hooting from Lyon's office.  When the complainant went to Lyon's office to ask that the noise be curtailed, he observed Graham showing Lyons a video on Graham's cell phone. The video showed a woman performing fellatio on Graham.  The complainant declined Graham's invitation to watch the video and returned to his customers, who refused to continue to do business because of the commotion; and

viii.   At a company barbeque, Graham asked the complainant if the hot dog he was eating felt like "the real thing".  This comment was overheard by Todd Menzies, who told a nearby child to stay away from "that man", in reference to Graham.

2.   Janzen  v.  Platy Enterprises Ltd. [1989 1 S.C.R. 1252

   Employment and human rights lawyers will know this case to be the case which established that sexual harassment is discrimination on the basis of sex.

1.   THE CHIEF JUSTICE:  - On January 24, 1983, Dianna Janzen made a complaint to the Human Rights Commission of Manitoba against Platy Enterprises Ltd., its owners, agents and servants, Pharos Restaurant.  The complaint reads:

I am a female resident of Manitoba.

I was employed as a waitress at the Pharos Restaurant, located at 9 St. Mary's Road, from August to October, 1982.  I was hired by Phillip Anastasiadis, who I believe is part owner of the restaurant.

During my period of employment at the restaurant, I was continuously sexually harassed by Tommy, the cook.  On many occasions Tommy grabbed my legs and touched my knee, bum and crotch area.  When I resisted his sexual advances, he told me to shut up or he would fire me.  He began to yell at me in front of staff and criticize my work.

During the second week of October 1982 I spoke to Phillip about Tommy's behaviour.  He told me he couldn't do anything about it.  Under the circumstances I felt I had no alternative but to quit my job effective October 31st, 1982.

I believe I have been subjected to discriminatory terms and conditions of employment and that I have been discriminated against because of my sex contrary to Section 6 of the Human Rights Act.

3.   The main issue in this appeal is whether sexual harassment in the workplace is discrimination on the basis of sex, and therefore prohibited by s.6(1) of the Manitoba Human Rights Act, S.M. 1974.

3.   Professional Institute of the Public Service of Canada   v.  Communications, Energy and Paperworkers' Union of Canada, Local 3011 2013 ONSC 2725

Nature of the Proceeding

1.   The Applicant seeks judicial review of a labour arbitration award dated November 29, 2012 issued by Aribrator J.F.W. Weatherill ("the Award")

2.   Mr. Haniff was terminated from his employment with the Applicant based on allegations that he sexually harassed a contract employee.  The Respondent Union filed a grievance with respect to Mr. Haniff's termination and the matter proceeded to arbitration.  The arbitrator found that Mr.Haniff had committed acts of sexual harassment and sexual assault in the workplace, but also found that the appropriate penalty was a suspension on the record,  rather than termination.  Consequently he ordered the Applicant to reinstate Mr. Haniff.  The Applicant seeks to set aside this aspect of the Award.

3.  For the reasons that follow, I would allow the application and order that the Award be set aside with respect to penalty and that the Applicant's decision to terminate be upheld.

Relevant Excerpt from 
Presenting Counsel's 
Notice of Hearing:

5,   The behaviour occurred in the workplace at the Courthouse or at a location or event related to the workplace;


In whose "workplace" did the behaviour take place ?  the J.P.'s or the staff ?

The staff in Re Massiah 2015 were unionized employees covered by a collective agreement and an anti-harassment policy.  No one complained to the J.P.  No one filed a grievance alleging improper conduct against the J.P.  No one filed a complaint under the Durham Region Anti-Harassment Policy. During the material time, one worker did file a complaint regarding the J.P.'s cologne under the fragrance policy and this concern was brought to his attention and resolved.

It is clear that in Smith v. Menzies(supra) and Janzen  v. Platy Enterprises Ltd. the lis is between employees and employers with the objectionable conduct coming from co-workers. In each case the objecting employee affirmatively communicates their dissatisfaction with the conduct to the employer.  The last case is not relevant to the issue of liability. Even on the question of penalty its usefulness is questionable and very limited. Again, it deals with an employment relationship. The lis there is between a trade union and an employer.

Could the court staff sue the subject J.P. civilly ?  The leading case of Weber  v. Ontario Hydro suggests they could not since the subject of their grievance is one covered under their collective agreement.  Indeed, readers will recall that Mr. Jian Gomeshi brought a $55,000,000 action against his employer which he ultimately withdrew.  High profile employment lawyer, Howard Levitt, pointed out that indeed his action would fail on account of Weber  v. Ontario Hydro. (see National Post - December 16, 2014)

Justices of the Peace are not employees.  They are not co-workers of the court staff. 

About the author:  Ernest J. Guiste is a trial and appeal lawyer.  A significant part of his work involves employment, human rights and issues involving the Charter. He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and prior to going to law school worked as an Employment Standards Officer with Ontario's Ministry of Labour and as a researcher with the Ontario Women's Directorate.  He was co-counsel to the J.P. in the subject case at the proceedings before the JPRC.

This piece is written for the sole purpose of drawing attention to an issue of public importance.  The Human Rights Code is quasi-constitutional legislation and must apply to all of Ontario's citizens in the same way.

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