In Hamilton v Crepe it Up!, the Human Rights Tribunal of Ontario ("Tribunal") dealt with a complaint by a former restaurant employee that her employer had made racially and sexually inappropriate comments to her, and had created a poisoned work environment.

The Tribunal found that there was sufficient evidence to support four of the employee's allegations. In particular, the Tribunal found that the principal of the company had:

1. made statement offensively correlating lateness with persons of Jamaican descent;
2. initiated a discussion with the employee about her sexual habits;
3. made an inappropriate comment via text message to the employee's boyfriend about their sexual relationship; and
4. as part of a promotion, required the employee to wear a button with a slogan on it that she felt exposed her to sexual harassment from customers.

The Tribunal also found that when the employee raised concerns about these comments to her employer, his response was unsatisfactory and insufficient.

As a result of these findings, the Tribunal determined that the employer had created a poisoned work environment and awarded damages.

One year later, in a separate decision, the Tribunal denied the employer's request for reconsideration.

The employer appealed to the Divisional Court. The Court reversed the Tribunal's decision.

The Court found that there was no evidence to corroborate the applicant's account of the conversation regarding her sexual habits. In resolving the competing accounts of the conversation, the Tribunal had relied upon the testimony of a former employee and friend of the applicant, as well as the applicant's boyfriend. Both of those witnesses were not present for the conversation but stated that the applicant's version of the story was consistent with how she had relayed that story to them at the time. The Court found that it was inappropriate for the Tribunal to use such hearsay evidence to weigh the credibility of the employee's and employer's respective versions of events.

The Court was troubled that the text message to the applicant's boyfriend was never presented in evidence, and found there was no evidence upon which to reasonably conclude the employer believed that the text would be shared with the applicant, particularly if it was offensive. The Court also held that the Tribunal's reasons were not clear as to how this text contributed to the finding of a poisoned workplace.

The dismissal of those two aspects of the complaint left two comments made by the employer, separated by years. In addition, the Court held that the employer had responded to the employee's concerns with regards to one of those incidents. As a result, there was insufficient evidence to conclude there was a poisoned work environment.

What Employers Should Know

The Divisional Court's decision helpfully reinforces the principle that an element of consistency is required to establish a poisonous work environment, and that employees must prove more than one or two disparate incidents to establish such a claim.

Note: This a reprint of an article by Stringer LLP.