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Harassment and sexual assault are unfortunately not uncommon in our society or in our workplaces. Our tribunals and courts have struggled with how to adequately address this problem, its roots, and its far-reaching impact. Tribunals and courts are varied in their decisions and often these decisions do not accurately reflect the changing nature of society nor do they address this problem. Furthermore, due to the complex nature of these matters and depending on where a victim begins their claim the outcome can be vastly different. As other legal commentators have discussed, many victims of harassment and/or assault may not be aware of these limitations.
When something happens in the context of employment many people would assume that the employer is responsible, but what happens if a sexual assault is committed by one employee against another, is the employer also liable? Many people may think that an employer should be; however, a recent decision (Decision No. 3096/17, 2018 ONWSIAT 1563) by the Ontario Workplace Safety Insurance Appeals Tribunal (WSIAT) decided that no an employer was not liable if the victim is entitled to WSIB benefits.
The facts and issues for the case mentioned above are as follows:
L.E.L. the plaintiff/respondent was employed at a Subway Restaurant (Subway) owned by the defendant/applicant A. Patel (Patel), H. Gajjar (Gajjar) is the defendant/interested party who was L.E.L.’s supervisor at the time. The allegations made against Gajjar by L.E.L were the following:
– Gajjar supplied L.E.L. with alcohol on multiple locations while at work;
– E.L. was asked by Gajjar to go to his home after work;
– In 2012, Gajjar forcibly grabbed L.E.L.’s hand and placed it on his penis outside his trousers while driving her home;
– In 2013, while on the Subway premises that were not covered by security cameras Gajjar massaged her back and breasts, and tried to kiss her; and
– At an undetermined time Gajjar paid L.E.L. to participate in sexual activity.
L.E.L. was determined to be a person with a disability and Gajjar did plead guilty to a lesser charge in relation to his Criminal Code charges. The main issue before WSIAT was whether Patel and Subway could be found to be liable for Gajjar’s actions and whether they were negligent by failing to have procedures and policies in place in respect to employee behaviour and a safe working environment.
WSIAT classified the sexual assault as an accident in the workplace. An accident under the Workplace Safety Insurance Act (WSIA) is defined in section 2 as a “willful and intentional act not being the act of the worker[.]” This type of intentional act allows L.E.L. to claim WSIB benefits. In claiming these benefits, she remained entitled to sue Gajjar but she was denied under section 26 of WSIA from suing her employer (Patel and Subway).
In analyzing this case it is evident that one must be very strategic with what forum they chose to pursue their claim (the courts, Workplace Safety and Insurance Appeals Tribunal, human rights tribunal etc), as advancing one claim may prevent them from advancing others, as can be seen in this instance. It is unfortunate that s. 26 of the WSIA prevented the employee from potentially claiming against the employer, as often liability on the employer is a way to achieve lasting change in the workplace.
In both large and small organizations, it might be difficult for employers to monitor every single employee. At the same time, employers need to ensure that the appropriate policies are in place and that employees know the standards of a safe workplace and consequences of not adhering to the standards.
If you have any questions relating to a workplace issue, contact Monkhouse Law today.
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