When employees allege harassment in
human rights complaints, they often refer to the creation of a
"poisoned work environment." A recent decision from
Ontario's Divisional Court helpfully demonstrates that
something more than one or two discrete incidents is usually
required to support such a finding.
In Hamilton v Crepe it
Up!, the Human Rights Tribunal of Ontario
("Tribunal") dealt with a complaint by a former
restaurant employee that her employer had made racially and
sexually inappropriate comments to her, and had created a poisoned
The Tribunal found that there was
sufficient evidence to support four of the employee's
allegations. In particular, the Tribunal found that the
principal of the company had:
made statement offensively
correlating lateness with persons of Jamaican descent;
initiated a discussion with the
employee about her sexual habits;
made an inappropriate comment via
text message to the employee's boyfriend about their sexual
as part of a promotion, required
the employee to wear a button with a slogan on it that she felt
exposed her to sexual harassment from customers.
The Tribunal also found that when
the employee raised concerns about these comments to her employer,
his response was unsatisfactory and insufficient.
As a result of these findings, the
Tribunal determined that the employer had created a poisoned work
environment and awarded damages.
One year later, in a separate decision, the
Tribunal denied the employer's request for reconsideration.
The Court found that there was no
evidence to corroborate the applicant's account of the
conversation regarding her sexual habits. In resolving the
competing accounts of the conversation, the Tribunal had relied
upon the testimony of a former employee and friend of the
applicant, as well as the applicant's boyfriend. Both of
those witnesses were not present for the conversation but stated
that the applicant's version of the story was consistent with
how she had relayed that story to them at the time. The Court
found that it was inappropriate for the Tribunal to use such
hearsay evidence to weigh the credibility of the employee's and
employer's respective versions of events.
The Court was troubled that the
text message to the applicant's boyfriend was never presented
in evidence, and found there was no evidence upon which to
reasonably conclude the employer believed that the text would be
shared with the applicant, particularly if it was offensive.
The Court also held that the Tribunal's reasons were not clear
as to how this text contributed to the finding of a poisoned
The dismissal of those two aspects
of the complaint left two comments made by the employer, separated
by years. In addition, the Court held that the employer had
responded to the employee's concerns with regards to one of
those incidents. As a result, there was insufficient evidence
to conclude there was a poisoned work environment.
What Employers Should
The Divisional Court's decision
helpfully reinforces the principle that an element of consistency
is required to establish a poisonous work environment, and that
employees must prove more than one or two disparate incidents to
establish such a claim.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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