Board that downplayed sex assault as 'prank' must reconsider decision
Canadian border guards are silhouetted as they replace each other at an inspection booth at the Douglas border crossing on the Canada-USA border in Surrey, B.C., on August 20, 2009. (Darryl Dyck / THE CANADIAN PRESS)
Beth Leighton, The Canadian Press
Published Friday, October 12, 2018 2:23PM PDT
OTTAWA - The board responsible for hearing grievances by federal government workers must reconsider a decision after the Federal Court of Appeal found it downplayed a sexual assault as a “prank,” and used its “own concept of logic” instead of assessing actual evidence.
The case involves a grievance filed to the Public Service Labour Relations and Employment Board by a Canadian Border Services Agency officer working at the Peace Arch border crossing south of Vancouver.
The officer, identified only as Jane Doe, alleged at a board hearing that the agency didn't provide an harassment-free workplace when she was assaulted in 2009, and her complaint was partially upheld by the board, although it also ruled compensation was not warranted.
In its unanimous decision, the three-member Federal Appeal Court panel says the board labelled the actions of her co-worker as “reprehensible,” a “vulgar prank” and “humiliating in the moment,” yet it also rejected compensation for the woman.
The board found her response to “one unpleasant experience,” was “extreme,” and “grossly exaggerated,” although her employer did not dispute that she endured vulgar and sexually violent comments for more than a year from the same man before being attacked.
In her decision, Justice Eleanor Dawson finds the board ignored the Canadian Human Rights Act requirement for compensation and also interpreted the term “compensation” too narrowly so it must send the case to a different board adjudicator to resolve.
“I am satisfied that when the board's reasons are read fairly as a whole, the board found that the co-worker's conduct was not the sole cause of the applicant's medical condition. It followed, in the board's view, that the applicant was not entitled to damages,” Dawson says in the ruling.
She calls that decision “problematic.”
The Human Rights Act requires compensation of up to $20,000 if a victim experiences discrimination, but Dawson says the board twisted the meaning of the act.
A summary of the board's decision shows the applicant began working with the co-worker in 2008 and was described as a confident and well-liked employee with aspirations to management.
She complained to her supervisor about the unwanted behaviour within months and the co-worker promised to stop but documents show the behaviour escalated until August 2009 when the assault happened and the co-worker was suspended and reassigned.
The woman went on leave and filed an action with the board the following year but took the outcome to the Federal Appeal Court arguing the earlier decision was unreasonable and biased.
Dawson's decision, delivered Oct. 10 in Ottawa, upholds the woman's complaint that the board was unreasonable, which Dawson says rules out the need for any decision about bias.
The judge says that despite the applicant's employer describing the attack as a sexual assault, the board never used that term, instead referring to it as a “prank.”
“The sexual assault at issue in this case could not be reasonably characterized as a prank,” Dawson says, adding the board also failed to “grapple with the evidence.”
Instead of dealing with the expert evidence about the effect the sexual assault had on the applicant, the Board simply concluded that it was unlikely that the assault caused the extreme emotional impact described by the woman, the judgement says.
“In light of the Board's unreasonable interpretation of 'compensate' and its failure to grapple meaningfully with the evidentiary record, I would allow the application for judicial review with costs,” the decision says.
Dawson set aside the rejection of compensation and ordered the issue to be determined by a different member of the board, “in a manner consistent with these reasons.”