7. Burden of proof: evidentiary issues

Under the Code, the claimant – or the person making a claim – has the onus of proving an allegation of sexual harassment. A claimant must show a human rights tribunal that, on a "balance of probabilities," there appears to be a contravention of the Code. The burden of proof for showing harassment under the Code is not as strong as the “beyond a reasonable doubt” standard required for establishing guilt in criminal cases.

Proving a case on a "balance of probabilities" is a civil burden of proof, meaning that there is evidence to support the allegation that the comments or conduct "more likely than not" took place, and that the behaviour was sexual harassment within the meaning of the Code.

Sexual harassment does not often occur in full public view. Since there are often no witnesses or material evidence to these comments or conduct, issues of credibility often arise in sexual harassment claims.[152] Human rights tribunals have accepted that it is difficult sometimes to make a finding based on credibility only, but acknowledge that tribunals often have to rely on subjective evidence presented by the parties involved.

Repeated conduct directed at one person is not needed. A pattern of conduct directed at several female employees may also be sexual harassment.[153] Where credibility is at issue, similar fact evidence[154] may be introduced to show that a pattern of behaviour might have occurred. Similar fact evidence could include testimony from others who state that they have been treated in the same way by the alleged harasser.

Example: A tribunal found that an employer misused “his business and his position of power within it to sexually solicit, harass and intimidate young women on job interviews and in their employment relationship with him.” The tribunal found this behaviour was “a highly distinctive pattern, or “signature” of discriminatory conduct toward young women who responded to job advertisements at his place of business.” On this basis, the tribunal allowed evidence of multiple claimants to be entered as similar fact evidence.[155]

Previous allegations or complaints of sexual harassment against an individual may be evidence that the person should reasonably have known that similar behaviour in the future is not welcome.[156]

As mentioned earlier, human rights law has established that the intention of the harasser does not matter when deciding if sexual harassment has occurred. The Supreme Court of Canada has held that a lack of intention is no defence to an allegation of discrimination. It is enough if the conduct has a discriminatory effect, and the focus should be on the impact of the questionable behaviour.[157]

Example: A manager’s special attention to a new female employee starts out as mentorship. However, his behaviour soon takes on overly personal overtones that include questions about her relationship with her boyfriend and her sexual past. The employee becomes more and more uncomfortable and tries to avoid being alone with her manager. Eventually, unsure of what else to do, she quits her job.

Note that a person does not have to object to the harassment at the time it happens for there to be a violation, or for the person to claim their rights under the Code.[158] A person who is the target of harassment may be in a vulnerable situation and afraid to speak out. Employers, housing providers, educators and other responsible parties must maintain an environment that is free of discrimination and harassment, whether or not anyone objects.

Courts and tribunals have also recognized that, due to the power imbalance that often exists between the harasser and the person being harassed, and the perceived consequences of objecting to the harassing behaviour, the person may go along with the unwelcome conduct.[159] In The Law of Human Rights in Canada: Practice and Procedure, Russel Zinn notes:

The complainant’s apparent passivity or failure to object overtly to sexual advances does not necessarily signal consent or welcomeness. This is particularly prevalent where there is an imbalance of power between the parties, such that the victim’s dependence on the harasser’s goodwill makes her more apt to tolerate unacceptable behaviour.[160]

Even though a person being harassed may take part in sexual activity or other related behaviour, this does not mean they welcome it.[161] Courts and tribunals have found that a power imbalance in a relationship can negate consent to sexual activity.[162] This approach is consistent with the approach in other jurisdictions.[163]

Where a person in a position of power is intent on pursuing an intimate relationship with an employee, tenant, student, etc., they are expected to go to great lengths to make sure the behaviour is welcome.[164] Where a person is particularly vulnerable (for examplethey are young,[165] a probationary or temporary employee,[166] etc.), the responsibility of the person in a position of power is even greater.[167]

Past consent to sexual activity does not equal present consent when it is made clear that one party does not welcome further sexual interaction.[168]

Human rights case law has found that depending on the circumstances, negative behaviour, including poor performance, outbursts, insubordination, etc. may be an understandable reaction to discrimination or harassment.

Example: After enduring months of unwanted attention from her professor, including numerous requests for dates, a university student begins to skip her classes, and ultimately fails her final examination.

Before taking punitive measures after such reactions, employers, housing providers, educators and other responsible parties should consider, where appropriate, whether the behaviour is in response to sexual harassment and should adjust their sanctions accordingly.[169]

[152] See Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).

[153] Simpson v. Consumers’ Assn. of Canada (2001), supra, note 105.

[154] "Similar fact evidence" is evidence of past similar conduct by the alleged harasser that may be relied on to support an allegation of harassment. The usefulness of this kind of evidence in supporting a claim of harassment depends mostly on whether the past incidents were similar enough to the kind of harassment the claimant is alleging. For example, did the respondent subject other female employees to similar comments or treatment? See Morrison v. Motsewetsho (2003), supra, note 48, and SH v. M […] Paintingsupra, note 34.

[155] Morrison v. Motsewetsho (2003), ibid. at paras. 183-184.

[156] See Daccash v. Richards (1992), supra, note 104.

[157] Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd., (1985), supra, note 136; Action travail des femmes v. Canadian National Railway Co. (1987) , 8, C.H.R.R.D/4210 (S.C.C.). This principle was again confirmed in Smith v. Mardana Ltd. (2005), supra, note 59.

[158] See McNulty v. G.N.F. Holdings Ltd. (1992), 16 C.H.R.R. D/418 (B.C.C.H.R.); Quebec (Commission des droits de la personne) v. Larouche (1993), supra, note 90; Wagner v. Bishop, 2012, supra, note 67 at para. 31.

[159] See Simpson v. Consumers' Association of Canada (2001), supra, note 105This principle was applied in Harriott v. National Money Mart Co., (2010), supra, note 12.

[160] Russel Zinn, in The Law of Human Rights in Canada: Practice and Proceduresupra, note 47 at 11-15-16.

[161] See Simpson v. Consumers' Association of Canada (2001), supra, note 105; Harriott v. National Money Mart Co., (2010), supra, note 12; Dupuis v. British Columbia (Ministry of Forests),(1993), 20 C.H.R.R. D/87 (B.C.C.H.R.); Howard v. deRuiter, 2004 HRTO 8, at para. 108.

[162] See Van Berkel v. MPI Security Ltd. (1996), 28 C.H.R.R. D.504 (B.C.C.H.R.); Dupuis v. British Columbia (Ministry of Forests), (1993), ibid. 

[163] For example, the U.S. Supreme Court has held that “the fact that sex-related conduct was ‘voluntary’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit…The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome’…While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the ‘voluntariness’ of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary”: see Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), at 2406.

[164] Note that there are situations in which sexual advances and sexual behaviour are never appropriate, such as when a person lacks the capacity to give consent.

[165] See, for example, Bruce v. McGuire Truck Stop (1993), 20 C.H.R.R. D/145 (Ont. Bd. Inq.), in which
the tribunal held that the young age of the complainant made the respondent’s behaviour more vexatious, and weighed heavily against the possibility that the respondent did not know or could not reasonably be expected to know his comments and conduct were not welcome.

[166] In Cugliari v. Clubine (2006), supra, note 89 at para. 196, Dr. Sandy Welsh, an associate professor
in the Department of Sociology at the University of Toronto, testified that “workers in probationary or temporary positions are more vulnerable than a full-time employee, and less likely to report harassment...[and are] more likely to use tolerance and endurance as coping strategies.”

[167] See Cugliari v. Clubineibid. at para. 226.

[168] See Radloff v. Stox Broadcast Corp. (1999), supra, note 126; See also, McIntosh v. Metro Aluminum Products and anothersupra, note 23.

[169] See Naraine v. Ford Motor Co. of Canada (1996), supra, note 51. See also, Morrison v. Motsewetsho (2003), supra, note 48 at para. 170.