March 8, 2026 (International Women’s Day) marked the 10-year anniversary of Ontario’s Bill 132 – the amendment to the Occupational Health and Safety Act aimed at “Supporting Survivors and Challenging Sexual Violence and Harassment.”
After a decade of this legislation and nearly nine years after the global #MeToo movement, it is unfortunately not uncommon to see employers, arbitrators, and even judges making findings that demonstrate a fundamental misunderstanding of sexual harassment and of the intentions of the legislation – which was not only to address sexual harassment when it happened, but to prevent sexual violence and harassment in the workplace.
Two recent decisions – one from the Ontario Human Rights Tribunal (HRTO) and one from the Canada Industrial Relations Board (CIRB) – provide examples of how even qualified experts in their legal fields continue to make fundamental errors, basing their findings on harmful stereotypes about gender-based violence.
Case #1
In the HRTO case, the Applicant, a racialized female junior employee, alleged she was sexually harassed by the male Office Manager. She claimed she was the victim of unwanted sexual advances and was pressured into an unwelcome romantic relationship with the Manager. The Respondent Manager claimed the romantic relationship was consensual and argued that the Applicant only made complaints against the employer when he tried to end the relationship.
The arbitrator found the Applicant’s evidence was unreliable and that she failed to make out a prima facie case for sexual harassment. In doing so, the arbitrator utilized some questionable reasoning.
Firstly, the Arbitrator concluded that since the Applicant employee did not report directly to the Respondent, the Respondent could not have abused his authority by making sexual advances towards her.
- This interpretation is overly simplistic and inconsistent with the definition of sexual harassment, which is explicitly intended to capture any person who is in “a position to grant or deny a benefit.”
- Further, the Arbitrator failed to properly apply this definition to the fact, acknowledged by both parties, that the Respondent was in a position to permit or deny the applicant’s work requests for things like leaving work early. The Applicant alleged that when she attempted to end her relationship with the Respondent, he punished her by not allowing her to attend an appointment at her son’s school. The Respondent acknowledged that he refused to allow her to leave work to attend to her son at school and admitted that he was “pushy” due to confusion about why the applicant was suddenly ignoring him.
- The Arbitrator’s decision failed to assess other possible power dynamics between the Applicant and the Respondent that were relevant, such as seniority within the organization or the employee’s social vulnerabilities.
- In concluding the relationship was consensual, the arbitrator failed to detail how consent was established between the junior rank-and-file employee and the Office Manager. In assessing “welcomeness” – the crux of most sexual harassment investigations – the fact-finder must assess what steps a respondent took to ensure consent for a sexual relationship was freely given. When there is a power imbalance between employees, there is a greater onus on the individual with more power to take such steps.
Secondly, the Arbitrator accepted the Respondent’s argument that the Applicant’s failure to report to Human Resources or to the police was evidence that the Applicant’s allegations were not true.
- This line of reasoning engages debunked myths about how “ideal victims” ought to behave in order to be credible or reliable. This reasoning has been rejected routinely by Courts and Tribunals, and yet qualified decision-makers continue to fall into these same tiresome traps.
Thirdly, there were inconsistencies in the Respondent’s evidence which the Arbitrator failed to address or resolve in coming to the conclusion that the Respondent was more reliable than the Applicant. As one example, the Respondent originally testified that during an off-site meeting with the Applicant, she made sexual advances to which he responded “let’s be friends”, and left. Later, he admitted to making an explicit statement (“I want to f*** you”) and touching the Applicant’s breast during this same meeting, but asserted that it was part of a mutual romantic encounter.
Lastly, prior to the Tribunal hearing, the employer conducted an external workplace investigation, which also resulted in no findings of sexual harassment. However, the Applicant claimed the investigator concluded that the Respondent’s conduct was “grossly inappropriate.” If the investigator determined conduct was “grossly inappropriate” but did not meet the definition of workplace harassment, it is possible that the investigator applied the same flawed reasoning as the CIRB decision outlined below. The Arbitrator failed to address or resolve how the investigator’s finding of “grossly inappropriate” conduct was consistent with a consensual relationship.
This is not to conclude that sexual harassment did in fact occur in the above case. I only highlight how the myths about sexual violence continue to persist and permeate the reasoning of even credentialed decision-makers in our adjudicative bodies.
Case #2
In the Canadian Industrial Relations Board case, which was recently set aside by the Federal Court of Appeal, the external adjudicator found that a Respondent made multiple “inappropriate” remarks of a “sexual nature” but ultimately determined the comments did not amount to sexual harassment.
In this case, the Respondent solicited information about a colleague’s sexual development, asked intrusive questions of a sexual nature, and shared inappropriate intimate details about his family. The Respondent admitted to asking female coworkers explicit questions about female sexual development, breastfeeding, and childbirth. He was told multiple times that his inquiries were unwelcome, but his behaviour continued.
The Board determined that while his conduct created “an uncomfortable and unwelcoming environment”, it was not sexual harassment. The Board found:
“None of his comments were sexual in nature or intent…He was not soliciting information for a sexual purpose but was instead soliciting information and having discussions relating to the ‘miracle of birth,’ childhood development, puberty and adolescent development.”
The Federal Court of Appeal ruled that the Board’s conclusion was internally contradictory and contradicted well-established precedents regarding sexual harassment. They noted:
“The maker of offending comments need not have been motivated by the desire to engage in sexual relations with those to whom the comments are made for the comments to constitute sexual harassment
…Nor does a determination of sexual harassment require that the maker of a series of offensive comments appreciate they are inappropriate or that the person to whom they are directed object to them, provided that, when viewed objectively, the impugned comments are of a sexual nature and are offensive.”
The Court of Appeal found that the Respondent’s repeated comments about a coworker’s sexual development, her children’s development, and comments about a coworker’s breasts met the definition of sexual harassment.
These recent cases show how, ten years after Bill 132, sexual harassment is still widely misunderstood. In both these cases described above, the decision-makers were recognized as experts in their respective fields.
It is important for employers to remember that, while harassment and sexual harassment have legal definitions requiring a legal test, not every investigator or lawyer is an expert in sexual harassment.
Employers need investigators who are not only capable of applying the correct legal tests but also engaging meaningfully with the gendered, cultural, and/or historical power structures that may be at play. Sexual harassment requires not just a legal analysis but an intersectional one that accounts for the broader context and complexities of sexual harassment.
Larissa Donovan offers specialized knowledge in conducting trauma and violence-informed investigations that are thorough, sound, and support reliable findings.
