Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 ployee was sufficiently connected to an em- ployer's creation or enhancement of a risk: • e opportunity that the enterprise afford- ed the employee to abuse his or her power • e extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been commit- ted by the employee) • e extent to which the wrongful act was related to friction, confrontation or inti- macy inherent in the employer's enterprise • e extent of power conferred on the em- ployee in relation to the victim • e vulnerability of potential victims to the wrongful exercise of the employee's power. In applying this list of factors to this spe- cific case, the Court of Appeal found that the taxi company provided the opportunity for the employee to abuse his power; the sexual assault did not further the taxi company's aims; the sexual assault was not related to friction, confrontation or intimacy inherent in the employer's enterprise; the taxi compa- ny did not confer any power to the taxi driver in relation to the passenger; and that the pas- senger was vulnerable. Taking the factors into account, the ap- peal court found the taxi company did not significantly increase the risk of the passen- ger being sexually assaulted by allowing the taxi driver to drive the taxi and by requesting him to drive the passenger. It dismissed the appeal. is may not be the end of the case, how- ever. An application for leave to appeal with the Supreme Court of Canada has been filed by the passenger. So time will tell whether or not the issue of vicarious liability will once again be examined by Canada's top court. For more information see: • Ivic v. Lakovic, 2017 CarswellOnt 8246 (Ont. C.A.). • Bazley v. Curry, 1999 CarswellBC 1264 (S.C.C.). Canadian Employment Law Today | 7 More Cases Company didn't significantly increase risk of assault by driver « from TAXI on page 3 ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ontario. Ron gratefully acknowledges Aneesha Lewis for her assistance in preparation of this article. For more information please visit www.MinkenEmploymentLawyers.ca. On March 28, 2013, Green filed a harass- ment grievance against the colleague and three other employees. Five months later, AANDC retained Quintet Consulting, an independent investigator. Quintet's investigation involved inter- viewing Green and her colleague, reviewing documents provided by Green, and review- ing the preliminary report by Green and the colleague with the opportunity for them to provide comments. Quintet's final report on June 9, 2015, found that the incidents did happen and the colleague "used exaggerated and inap- propriate language," but they didn't meet the definition of harassment under the Treasury Board Secretariat Policy on Harassment Prevention and Resolution — "improper conduct by an individual, that is directed at and offensive to another individual in the workplace …at that the individual knew or ought reasonably to have known would cause offence or harm" — as they weren't personal attacks but related to his opinion about her performance as his supervisor. Quintet also found the "liver" comment was made in reference to the anonymous email, which the colleague may not have written. Other comments — such as the "guts for garters" comment — were directed towards others, not Green, the report said. e report noted that to establish ha- rassment, a reasonable person viewing the evidence would have to conclude there was harassment . e senior assistant deputy minister, reviewed the report and noted that the in- cidents "caused …distress" for Green, but agreed they didn't meet the definition of ha- rassment. AANDC dismissed Green's griev- ance on Sept. 11, 2015. Green appealed to the Federal Court, claiming the dismissal of her grievance was unreasonable. She argued Quintet didn't properly apply the policy's definition of ha- rassment and didn't give sufficient weight to one of the more serious allegations — the "liver" comment. Green also said her right to procedural fairness was violated because the investigation took 27 months to complete — the harassment investigation process was supposed to take 12 months maximum, bar- ring extenuating circumstances. e court noted that it has been estab- lished in previous arbitration decisions that "harassment is generally a course of conduct viewed objectively rather than a single act." erefore, the investigator didn't err when determining that the definition of harass- ment included an objective element. In ad- dition, this approach made more sense in the context of the work environment, as Green was making complaints about the conduct of a subordinate. As a result, the report's ap- proach to harassment and its definition was reasonable, said the court. e court also found that the "eat her liver" comment was made in the context of the colleague telling Green about the anony- mous email and there was no finding that the colleague had actually written the email. As this incident was covered in the Quintet re- port, it was reasonably considered and not an error, the court said. e court determined that the investiga- tion report was "exhaustive in its factual find- ings and in its consideration of the evidence" with multiple interviews and statements. In addition, both Green and her colleague were given the opportunity to comment on the preliminary report. e report's find- ings were reasonable and it was reasonable for AANDC to base its decision to dismiss Green's grievance on it, said the court. As for the 27 months it took for the final decision, the court found "this was a com- plex investigation, involving multiple par- ties, in a difficult work environment." For example, it took five months for AANDC to find an appropriately qualified investi- gator. In addition, both Green and her col- league experienced health issues during the investigation, which delayed the process. As a result, the process met the "extenuat- ing circumstances" reason in the policy for allowing the process to exceed 12 months, the court said in dismissing Green's appeal. See Green v. Canada (Aboriginal Affairs and Northern Development), 2017 CarswellNat 7095 (F.C.). Objective element to determining harassment « from INVESTIGATION on page 1

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