Under Ontario’s Occupational Health and Safety Act, workplace sexual harassment is defined as “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 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.” Simply stated, sexual harassment is when someone engages in conduct, connected to sex, that they reasonably should have been known is unwelcomed.
Courts take allegations of sexual harassment seriously. Thirty-five years ago, the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd made it clear that sexual harassment is one of the worst forms of human rights discrimination. Likewise, courts and human rights tribunals are willing to award significant damages when they find that an employee has been sexually harassed. That was the case in the recent Alberta Human Rights Tribunal decision Oliva, Pascoe, and Strong v Gursoy, (2024 AHRC 45).
Oliva, Pascoe, and Strong v Gursoy (2024 AHRC 45)
In Oliva, Pascoe, and Strong v Gursoy, Ms. Olivia, Ms. Pascoe, and Ms. Strong all worked for TJ Construction Management Ltd., which was owned and operated by Mr. Gursoy. All three sued Mr. Gursoy for sexual harassment, which were combined for a decision by Alberta’s Human Rights Tribunal.
Ms. Olivia worked for TJ Construction Management Ltd. for about a year before resigning due to the sexual harassment that she faced. While working, Mr. Gursoy called Ms. Olivia by sexually suggestive nicknames and made inappropriate sexual comments about her physical appearance. Mr. Gursoy also arranged for Ms. Olivia to search for and find sugar babies for him to have sexual relationships with, in exchange for money and gifts. He also suggested that they go to Jasper together to sit on a rug and drink wine, which Ms. Olivia took as a sexual advance. Mr. Gursoy also inappropriately sexually touched Ms. Olivia, such as regularly patting her on the back and shoulder and kissing her neck. Mr. Gursoy also slapped Ms. Olivia’s backside at least on two occasions. None of Mr. Gursoy’s actions were welcomed by Ms. Olivia.
Ms. Pascoe, who was returning to the workforce 3 years after having a child, worked for TJ Construction Management Ltd. for about a month before she resigned due to the sexual harassment that she faced. This included Mr. Gursoy calling Ms. Pascoe sexually suggestive nicknames and making sexually suggestive comments about her clothing. Mr. Gursoy also touched Ms. Pascoe’s back and shoulders without her consent on a weekly basis.
Ms. Strong worked for TJ Construction Management Ltd. for under a year, before leaving for maternity leave and not returning. Ms. Strong was also given sexually suggestive nicknames and received sexually suggestive comments, such as a request that she has a baby with Mr. Gursoy “the natural way” and that he would pay for her to have sex with him. Like, Ms. Olivia, Ms. Strong was also given the task of finding Mr. Gursoy sugar babies and corresponding with them. Mr. Gursoy also inappropriately touched Ms. Strong without her consent. Further, when Mr. Gursoy became aware that Ms. Strong was pregnant, he berated her and demoted her to a position with less pay.
Mr. Gursoy retaliated against Ms. Olivia and Ms. Pascoe for filing two statements of claim in the Alberta Court of Queen’s Bench, as then known. The first claim was against Ms. Olivia for inflicting an economic loss on Mr. Gursoy by conspiring with others to cause false human rights complaints against him. It claimed $1 million in damages. The second claim was against Ms. Olivia, Ms. Strong, and Ms. Pascoe, for all three of them working together with the plan to inflict damages on Mr. Gursoy by making false human rights complaints. It claimed $1.25 million in damages.
The Alberta Human Rights Tribunal (tribunal) had little difficulty finding that all three women had been sexually harassed by Mr. Gursoy. It found that such sexual harassment was a factor in all three women choosing to leave their jobs. In making the ruling, the tribunal made it clear that instances of sexual harassment that occurred before the limitation period were still included, as it constituted a continuing contravention.
The tribunal found that the sexual harassment had a profound effect on Ms. Olivia. It caused her to seek medical attention for depression and anxiety. The tribunal also found that Mr. Gursoy’s sexual harassment was completely unacceptable, and occurred frequently over a long period, which is deserving of serious denunciation. Therefore, the tribunal awarded her $75,000 in general human rights damages. The tribunal also awarded her lost wages damages of $26,800 to compensate for the loss in work caused by her leaving work due to the sexual harassment.
The tribunal found that Mr. Gursoy’s sexual harassment of Ms. Pascoe was reprehensible, especially as she is a single mother returning to the workforce after a three-year hiatus, and that is deserving of a significant denunciation. Despite the sexual harassment occurring over a relevantly brief amount of time, the tribunal still awarded $30,000 in general human rights damages and $11,200 in lost wage damages.
The tribunal found that Mr. Gursoy’s sexual harassment made Ms. Strong’s work environment intolerable. Mr. Gursoy’s conduct was also objectively serious as he was taking advantage of her in a vulnerable position as she was pregnant and that requires strong denunciation. Therefore, the tribunal awarded her $50,000 in general human rights damages. Since Ms. Strong did not request lost wage damages, no such damages were awarded.
The tribunal found that Mr. Gursoy retaliated against Ms. Olivia and Ms. Pascoe by filing statements of claim against them that were directly connected to their human rights complaint. The tribunal found that Mr. Gursoy intended to intimidate and upset Ms. Olivia and Ms. Pascoe with the lawsuit and force them to incur legal expenses in defending the claims. As a result, the tribunal awarded both Ms. Olivia and Ms. Pascoe $25,000 each for general damages for retaliation. The tribunal also awarded the costs that they incurred defending the claims, which for Ms. Olivia amounted to $3,921.03 and for Ms. Pascoe amounted to $1,353.88.
Takeaways from Oliva, Pascoe, and Strong v Gursoy (2024 AHRC 45)
This case is notable because it is one of the highest awards for sexual harassment human rights damages in Alberta, bringing it in line with other provinces across the country that have been willing to award higher damages for sexual harassment.
Employers should take this case as a warning. Though this award may be higher because of the egregious sexual harassment that I described above, and that Mr. Gursoy was self-represented, it shows the higher range of damages that an employer can face. To help protect the risk of seeing similar human rights damages, you should have an up-to-date harassment and violence policy for your workplace, which is required under both provincial and federal law. It is also advisable that you provide all of your employees with human rights training and promptly investigate any human rights complaints made by your employees. If you do face a human rights issue, you should contact an employment lawyer and seek advice promptly.
Employees should take this case as an example of the multiple forms of damages that they could receive if they are sexually harassed, especially if it is to the point where they feel forced to quit. If you have been sexually harassed, especially if it was to the point where you left or were forced to leave your job, you should contact an employment lawyer immediately.
How Suzanne Desrosiers Professional Corporation can help
At Suzanne Desrosiers Professional Corporation, we can help both employers and employees address sexual harassment in the workplace. For employers, we can help you create or update a harassment and violence policy. We also offer human rights training online self-paced and live in person for employees and employers. We can also help employees file human rights complaints if they have been sexually harassed. We can also help defend employers who received a human rights complaint for sexual harassment. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.