OHRT looks into complaint about behaviour of grocery store manager
The Ontario Human Rights Tribunal has dismissed an application alleging sexual harassment and sexual assault in the workplace on the grounds that it was filed nearly two decades beyond the statutory limitation.
The worker was employed at a grocery store operated by Metro Ontario from the fall of 2002 to the summer of 2003. According to the worker, she was sexually harassed and sexually assaulted by her manager during her employment. However, she didn’t inform the company at the time.
After she left Metro, the worker was employed as a registered massage therapist for 13 years, although she said she continued to experience trauma from the sexual harassment and assault at Metro. In 2015, she was no longer able to work because of the physical and mental demands of the job, so she went on long-term disability.
In 2018, the worker submitted a complaint about the harassment and assault to Metro’s online complaints platform for customers. Metro conducted an internal investigation into the complaint, finding evidence of sexual harassment but insufficient evidence to substantiate the claim of sexual assault. The findings were verbally communicated to the worker in 2019, according to Metro.
Sexual harassment, assault complaint
The worker denied being informed of the results of the investigation, saying that she was in regular contact with Metro’s investigator but he stopped returning her phone calls and emails in 2019. She decided to file a police report and subsequently pursued a diversion program with counselling rather than criminal charges. In 2022, she changed her mind and filed criminal charges.
The worker contacted Metro again in May 2022 to ask about the investigation’s findings, and the company emailed her on May 24 with a letter containing the findings. The worker responded that the report was incorrect and offered a copy of her police report. Metro confirmed the investigation’s findings on June 17, advising that the investigation was independent of the police investigation.
The worker filed a human rights application against Metro and the individual investigator on Nov. 7, alleging sexual harassment and sexual solicitation or advances with respect to employment in violation of the Ontario Human Rights Code.
Metro and the investigator requested that the application be dismissed for being filed long after the expiry of the one-year limitation period, arguing that the worker didn’t satisfy the requirements of s. 34(2) of the code, which requires the applicant to demonstrate that the delay in filing the application was incurred in good faith and no one impacted by the delay would suffer substantial prejudice by proceeding.
Last incident of discrimination
The tribunal asked the worker for additional submissions on why the application should be allowed to proceed 19 years after the worker’s employment ended. The worker submitted that the last incident of discrimination was Metro’s June 17, 2022, letter informing her of the investigation results – or the May 24 email initially explaining the findings - which was within the limitation period.
The worker also claimed that the repeated sexual harassment and assault during her employment with Metro caused prolonged mental health and physical disabilities that prevented her from filing the application earlier and argued that the prevalent issue of workplace sexual assault was important enough that her allegations should be assessed.
The tribunal determined the application was untimely under the code’s requirement for applications to be filed within one year of the alleged discriminatory incident. While the applicant cited the company’s June 17, 2022, communication as the last incident of discrimination, the tribunal found that this correspondence didn’t constitute discrimination.
The tribunal noted that the code doesn’t impose a duty on employers to investigate complaints from former employees unless necessary to ensure a workplace free from discrimination for current employees. Any deficiencies in Metro’s investigation didn’t amount to a breach of the worker’s rights because she was no longer employed at the company at the time of her complaint, said the tribunal.
Medical evidence
As for the worker’s assertion that prolonged mental and physical health disabilities prevented her from filing her application sooner, the worker didn’t provide supporting medical evidence that demonstrated these conditions were so debilitating as to prevent her from pursuing her rights under the code, said the tribunal while acknowledging that she likely suffered some trauma and disability. The worker provided two medical reports from 2018 and 2019 discussing her inability to work as a message therapist, but neither addressed her capacity to pursue her allegations, the tribunal added.
The tribunal noted that the worker had actively pursued her allegations through other channels, including police and Metro’s complaint process, as early as 2019. The absence of an explanation for the subsequent three-year delay in filing the human rights application further undermined her claim of good faith, said the tribunal.
The worker also argued that the case should proceed due to the public importance of addressing workplace sexual assault, but the tribunal reiterated that the code’s mandatory limitation period couldn’t be extended without meeting the requirements of s. 34(2).
While recognizing the seriousness of workplace sexual assault, the tribunal concluded it had no discretion to waive the statutory deadline in this case. It dismissed the application for the late filing and the worker’s failure to meet the good-faith criteria under s. 34(2) of the code. See Bourgault v. Metro Ontario Inc., 2024 HRTO 1494.
