'The employer is liable for the actions of its employees or agents in the course of their employment'
An Ontario employer has been found vicariously liable for discrimination against and sexual harassment of a client by an employee.
The employer, K2 Martial Arts Kickboxing, was a martial arts gym in Ottawa. The worker was a male occasional instructor at K2.
On Nov. 19, 2018, the worker and a female client stayed after class. The worker was the last staff member there and had lock-up duties. After the last person left, the worker and the client continued talking. The client mentioned that she had some issues with her back and asked the worker to feel it. The worker began massaging her back and kissed her neck.
The client initially returned the worker’s kisses but then decided that she didn’t want to. She told the worker that she needed to get home and change. The worker tried to lift her shirt and she said no, pushing his hands away. The worker then tried to undo the client’s pants and she again said no.
The worker followed the client to the change room and continued making advances while she said she needed to get home. Eventually, he stopped and told the client that he didn’t want anything else to happen between them.
Nine days later, the client came to K2’s facility before a class and told the worker that she was uncomfortable about the incident and it couldn’t happen again. The worker replied, “Okay, sorry, I guess” and asked if she was going to call the police.
On Nov. 29, the client went to an evening class at K2 and stayed afterwards to stretch. She started talking to the worker and brought up the Nov. 19 incident. They ended up being the last two people there and they had a long discussion.
Reported harassment to employer
On Dec. 5, the worker contacted K2’s site manager and reported the Nov. 19 incident. The site manager met with the client, writing down her account. She told her that the worker wouldn’t be welcome back at the gym and the client’s comfort and safety were a priority.
A few days later, the site manager messaged the client to say that the worker would be at the gym during a class she often took as he was needed at the front desk. The worker attended her class and had to have some contact with the worker.
One of K2’s two owners discussed the allegations with the worker, who referred to “some kind of sexual entanglement” but denied following the worker into the change room. The owner asked the main instructor if he had witnessed anything and said he was to be the last person at the gym. The worker was told that he wasn’t to be alone with anyone and had his key taken away.
According to the co-owner, he didn’t contact the client because she had reached out to the female site manager and he wasn’t sure if the client would be comfortable talking about it with a male. They were also waiting for the worker to press criminal charges.
Something K2 did right was to take the client’s complaint seriously from the start, according to Dave McKechnie, a partner in the Employment and Labour Relations Group at McMillan in Toronto.
“They met with the client and talked to the worker - they took the steps that we would recommend in an investigation,” he says. “The tribunal called them out for allowing the worker to continue in the gym when they were already aware of the complaint - a lot of employers, as a good practice, will put people on administrative suspensions when there are these kinds of complaints to ensure that there are no more interactions - but the tribunal did say that they took reasonable steps with the investigation.”
Worker denied harassment allegations
The client went overseas in early January 2019, but on March 18 she was back and saw on social media that the worker was at the gym. She contacted the site manager, who told her that the worker had denied her allegations. She invited the client to submit a written, detailed description of the Nov. 19 incident.
The client wrote a statement and submitted it to the Ottawa Sexual Assault Support Centre (SASC) as she felt the gym wasn’t doing enough.
K2 asked the worker to meet with the two owners, but the client asked that all communication be through the SASC support person. They met on Sept. 6 at a restaurant with the support person present. The owners identified “items of action,” including the development of a policy to address sexual harassment and assault – K2 was a small business and they weren’t aware of a legal requirement to have a policy - and reiterated that the worker denied everything. Three weeks later, the client hadn’t heard anything further and stopped all contact with K2. The SASC support person also had no further contact with the company.
The client filed a human rights complaint alleging discrimination with respect to services because of sex, including sexual harassment. She argued that K2 was liable for the discrimination because it failed to carry out its duty to take reasonable steps after she made the complaint, and the worker was acting in the course of his duties as an employee of K2.
The tribunal found the client to be credible and accepted her testimony that the worker had engaged in unwanted behaviour. The tribunal found that the incident constituted sexual harassment and was a violation of the worker’s right to equal treatment in accessing services under s. 1 of the Ontario Human Rights Code.
Vicariously liable for discrimination
The tribunal also confirmed that K2 was vicariously liable for the discriminatory conduct of its employee under ss. 46.3(1) of the code. While the tribunal recognized that the company had taken some remedial actions after the client lodged her complaint, if found that K2 was still liable for its employee’s conduct.
“Employers are focused on sexual harassment in the workplace between employees, and that’s certainly the traditional way employers are used to thinking about it, both in terms of the code and the Occupational Health and Safety Act (OHSA),” says McKechnie. “There isn't a prohibition explicit in the code about sexual harassment in the provision of services, so they include that under the discrimination side, that an act of sexual harassment is discriminatory in and of itself - that's how they got to a finding that there was a breach of the code by K2, even though the provision of services is a bit different [than employment].”
The tribunal awarded $10,000 to the client as compensation for injury to dignity, feelings, and self-respect. In determining this amount, the tribunal considered the inherent value of the right to be free from discrimination and the client’s vulnerability during the incident.
The tribunal ordered that K2 and the worker were jointly and severally liable for the damages.
“Section 46.3(1) of the code basically says the employer is liable for the actions of its employees or agents in the course of their employment, except for harassment and accommodation in employment,” says McKechnie. “When it comes to services, it's not a discretionary remedy - the employer is going to be liable if it's found that the individual acted in the course of their employment.”
Investigation didn’t reduce liability
The tribunal found that while K2 made some efforts to address the complaint, these steps didn’t exempt the company from liability under the code.
The decision shows that companies have essentially the same obligations to address a harassment complaint against an employee from a customer as they would have with one relating to employee-on-employee harassment, according to McKechnie.
“The steps that K2 took would be the same that you would take if it was a complaint between employees - you immediately conduct an investigation and take it seriously,” he says. “Make sure that you understand obligations under both the code and under the OHSA, because if they didn't treat this thing as a serious issue and it later came out that this employee sexually harassed other employees, they would have an OHSA problem because they're not taking all the measures and doing due diligence.”
Employers have to pay attention to situations where there might be a heightened risk of employee misconduct for which the employer has vicarious liability, says McKechnie.
“In this specific case, you have a heightened risk because of limited people within the facility and the worker had keys to lock up - there isn't going to be the same oversight as you might have in an office or a factory setting,” he says. “An employer should look at where there are blind spots or heightened risks for employees to potentially harass or engage in an act of discrimination to a third party, and if they’ve been properly trained to deal with those situations.”
