United States: Alberta Court Of Appeal Reminds Adjudicators To Take A Modern Approach To Sexual Misconduct In The Workplace

Two years after the #MeToo Movement made the prevalence of sexual harassment and sexual assault in the workplace known worldwide, the Alberta Court of Appeal in Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388 offered some important commentary.  This case involved the City of Calgary's appeal of a judicial review decision pertaining to a sexual assault in a workplace.  Although its decision was made in a unionized context, the Court of Appeal's guidelines are worthy of being considered whenever a sexual assault complaint is made in a workplace.    


An employee complained that a coworker (the grievor) groped her breast without her consent.  The City determined the misconduct was substantiated and found it constituted a serious breach of the City's Respectful Workplace Policy.  In its letter terminating the grievor, the City noted he initially denied physical contact with the complainant, but after discussions with the union representative, admitted touching her innocently. 

The union grieved the termination on behalf of the grievor.  When the matter was not resolved via the dispute resolution process it proceeded to arbitration before a sole arbitrator.

The Arbitrator's Decision

The arbitrator found the grievor committed the misconduct, but concluded termination would be an excessive disciplinary response due to mitigating factors and the nature and circumstances of the misconduct.  The arbitrator considered the following factors to be mitigating:

  • The grievor's long service record;
  • The grievor's clean disciplinary record;
  • The economic hardship termination would impose on the grievor and his family, given the state of the economy at the time, and the grievor's level of education, lack of training, and language barriers.

In addition, the arbitrator found the nature and circumstances of the grievor's misconduct was at the lower end of the sexual harassment spectrum because:

  • It was a single incident;
  • The complainant did not appear to be traumatized in any significant way;
  • There was no evidence that this was anything but an impulsive, ill-thought-out, isolated incident; and
  • There was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment.  

The arbitrator directed the City to reinstate the grievor without a loss of seniority following a nine-month suspension without pay, and directed the grievor to attend an orientation process including the City's Respectful Workplace Policy.

Decision of the Court of Queen's Bench of Alberta

The City applied for judicial review of the arbitrator's decision.  In Calgary (City) v Canadian Union of Public Employees, Local 37, 2017 ABQB 662, the reviewing judge dismissed the application for judicial review, stating that the arbitrator's decision-making process was justified, transparent and intelligible, and the outcome fell within the range of possible, acceptable outcomes based on the facts and law. 

Decision of the Court of Appeal of Alberta

For the following reasons, the Court of Appeal vehemently disagreed with the arbitrator's decision and the reviewing judge's finding on judicial review:

  • The arbitrator downplayed the seriousness of the misconduct when she characterized it as "lower end sexual harassment."
  • Grabbing and squeezing another person's breast without consent is sexual assault, which is sexual misconduct/harassment in its most serious form.  The arbitrator failed to conduct her analysis with this finding in mind.
  • The factors the arbitrator focused on were "...not current with present day analysis of sexual assault and are inconsistent with the social context and the evolving attitudes of what is acceptable in the workplace." For example, she commented that the complainant did not appear to have been traumatized in any significant way by the contact; the court noted that it is impermissible to consider this a mitigating factor.
  • The arbitrator relied on arbitral precedents that are incongruent with modern society's view of acceptable conduct in the workplace.
  • The arbitrator focused on the interests of the complainant and grievor.  She failed to weigh the grievor's dishonesty and the City's onerous legal obligation to protect its employees and maintain safe and respectful workplaces.  The Court noted the 2017 overhaul of Alberta's health and safety legislation and the introduction of provisions directed at sexual harassment and violence in the workplace, which, in its view, spoke to "... the changing culture and social expectations in the workplace."

The Court of Appeal concluded that the factors weighed heavily against reinstatement, allowed the appeal, and remitted the matter for re-hearing before a different arbitrator.

Bottom Line for Employers

It is interesting to consider where each of the three decisions in this case falls in the #MeToo timeline:

  • The arbitrator's decision was delivered on August 19, 2016, over a year before the #MeToo movement began.  At this point, society was not yet fully aware of the extent of workplace sexual misconduct.
  • The decision of the Court of Queen's Bench of Alberta was delivered on November 1, 2017, just weeks after the #MeToo movement gained momentum.
  • The decision of the Court of Appeal of Alberta was delivered on October 16, 2019, exactly two years after the birth of the #MeToo movement.  By this time, many women had come forward with stories of sexual assault in the workplace and attitudes were forever transformed.  In this modern context, it became less acceptable to downplay a sexual assault complaint. 

The Alberta Court of Appeal sent a clear message to adjudicators faced with deciding how an employer should respond to a workplace sexual assault: do not downplay the seriousness of sexual assault and analyze it with the understanding that it is sexual harassment in its most serious form.  In conducting the analysis, avoid focusing on factors that at the relevant time would be considered irrelevant based on evolving attitudes.  Avoid relying on legal precedents that are out-of-step with modern views of acceptable behavior in the workplace.  And finally, recognize the employer's duty to maintain a safe and respectful workplace is owed not only to the complainant but to all employees.  

Although the Alberta Court of Appeal directed these guidelines to adjudicators faced with the task of determining how an employer should respond to a workplace sexual assault, we encourage employers to also consider the court's guidelines when conducting such an analysis.   

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions