CITATION: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058

DIVISIONAL COURT FILE NO.: DC-20-523-0000/DC-20-001-00JR

DATE: 2021/07/19

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Kristjanson and Gomery JJ.

BETWEEN:

United Food and Commercial Workers Union, Local 175

Applicant

– and –

Copper River Inn and Conference Centre

Respondent

Georgina Watts, Brittany Ross-Fichtner and Adam Veenendaal for the Applicant

Elizabeth McLeod and Warren Mouck for the Respondent

HEARD by videoconference: February 1^st, 2021

S. GOMERY J.

Introduction

[1] This is an application for judicial review of an arbitral award upholding a grievance based on an employer’s failure to investigate an alleged workplace sexual assault. Although the arbitrator upheld the grievance, he awarded the grieving employee only $1000 in damages. The union representing the grievor contends that this nominal award was unreasonable. It therefore seeks an order quashing the award and directing either a new arbitral hearing or directions to the arbitrator on the relevant legal principles so that he can issue a fresh decision.

[2] For the reasons that follow, I find that the arbitrator’s decision was unreasonable. He did not identify the basis for upholding the grievance, did not address potential statutory breaches, and otherwise did not provide transparent, justified and intelligible reasons. I would grant the application, quash the decision and direct a new hearing before another arbitrator on the grievance.

Background

[3] On December 16, 2017, Marisa Flamand (“Ms. Flamand” or the “Grievor”) was fired from her part-time housekeeping job at the Copper River Inn and Conference Centre in Fort Frances, Ontario (the “Inn” or the “Employer”). She was a 17-year-old high school student. It was her first job. She had started working at the Inn just over two months earlier and had not yet completed her probationary period when she was let go. According to her Employer, she was terminated due to her poor work performance.

[4] The union that represents workers at the Inn, the United Food and Commercial Workers Union, Local 175 (the “Union”), filed two grievances following Ms. Flamand’s termination. A single hearing on both grievances was held before Arbitrator Dana Randall (the “Arbitrator”) over four days in 2017, and submissions were made by telephone in February and August 2018. The parties provided the Arbitrator with an Agreed Statement of Facts and also called oral evidence. On May 17, 2019, the Arbitrator issued an award upholding both grievances (the “Award”).

The first grievance

[5] In the first grievance, the Union alleged that the Inn’s owner, Bryce Campbell (“Mr. Campbell”), fired Ms. Flamand not because her work was poor but because he was upset by the Union’s pursuit of a harassment complaint that she had made a few weeks earlier. A month or so after she started working at the Inn, Ms. Flamand had complained to her supervisor, Evelyn Johnson (“Mrs. Johnson”), that another housekeeper had repeatedly screamed and sworn at her about the quality of her work in front of coworkers and hotel guests. The other housekeeper was Mrs. Johnson’s sister, Rhonda (“Rhonda”).[^1]

[6] During the arbitration hearing, Mrs. Johnson admitted that Ms. Flamand had a legitimate complaint about her sister’s conduct. Other employees had also complained about Rhonda’s behaviour towards them and she was let go a few months after Ms. Flamand was fired. Beyond speaking to Rhonda, however, Mrs. Johnson took no steps to discipline her sister and did not follow up on the complaint with Ms. Flamand. According to Ms. Flamand, Rhonda’s misconduct towards her continued unabated. In early December 2016, she and her mother contacted the Union about the unresolved complaint, the Union’s representative in turn contacted Mr. Campbell. In response, Mr. Campbell and Mrs. Johnson met and agreed that Ms. Flamand should be let go.

[7] The Arbitrator held that the Employer’s actions breached both the Ontario Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) and its own Anti-Harassment Policies and Procedures (the “Anti-Harassment Policy”). Under both the OHSA and the Anti-Harassment Policy, the Employer was required to conduct an investigation of Ms. Flamand’s harassment complaint and inform her of the outcome. It did neither. The Employer was furthermore prohibited from engaging in any reprisal against an employee for lodging a complaint. The Arbitrator concluded that Mr. Campbell “saw red” when the Union’s representative raised the issue of Ms. Flamand’s unresolved harassment complaint in December 2017 and that this was the basis for the decision to fire her. In the Arbitrator’s words: “[Ms. Flamand] was guilty of asserting legal rights, supported by her Union, which the Employer was unwilling to tolerate”. As a result, Ms. Flamand was awarded lost wages to the end of her probationary term or until she obtained alternative employment at a higher hourly rate.

The second grievance

[8] The second grievance arose from the Employer’s handling of another incident involving Ms. Flamand. The Union learned about the incident after receiving productions from the Employer in the context of the first grievance. These productions included notes made by Mrs. Johnson in her worklog.

[9] In the Award, the Arbitrator set out the facts giving rise to the second grievance as follows:

The Grievor alleges that she was sexually assaulted at work on November 6, 2016. She was working with another housekeeper, Bobbi Joe Chabot, but their respective tasks had separated them. The Grievor ran into a group of male guests. It was never established whether these guests were one night stays or longterm guests of the hotel. The Grievor alleges that one of them gave her some loose change, apparently $3 or $4 worth, as a tip. Another of the guests, she alleges, approached her and wrapped his leg around her and kissed her on the cheek. She testified that she resisted same.

[10] The Arbitrator described what happened immediately after the incident as follows:

[The Grievor] reported the incident to Chabot shortly thereafter. Chabot, whose status was either as a housekeeping colleague or a supervisor in training – the supervisory structure was very fluid - testified that the Grievor was excited by the tip and the attention that she had received. Chabot testified that the Grievor appeared proud of herself. She exclaimed that she had received a tip.

Chabot was very critical of the Grievor’s conduct and censured her for same. She was of the view that the Grievor’s conduct was inappropriate, that it breached the rule that ‘we don’t allow anyone to touch us’. She advised the Grievor that she would be reporting the incident to Johnson. Chabot testified that the Grievor asked her why she would do that and indicated that she was not concerned about the incident.

Chabot did report the incident to Johnson shortly thereafter. The Grievor did not raise the issue with Johnson.

Johnson noted the incident in her log or diary, but did nothing else.

[11] The Arbitrator found that the alleged sexual assault had “nothing to do” with the Employer’s decision to terminate the Grievor’s employment, as Mr. Campbell only found out about it later. He noted that Ms. Flamand did not lodge a complaint about the incident and held that there was no evidence that she suffered any mental or emotional damage as a result of it. He nevertheless concluded that the Employer had a duty to investigate the incident and had breached this duty:

Weighed against these observations is the Grievor’s young age when this incident happened, and that there was a Harassment Policy in effect at the time, which mirrored OHSA, and which placed a positive duty on the Employer to investigate harassment complaints, even when a complaint was not filed, and required the provision of a report to the complainant in the wake of same, and offered mechanisms for resolution. It is clear that none of this was done.

[12] The balance of the Arbitrator’s analysis focused on whether any substantial damages should be awarded to the Grievor as a result of this breach. He characterized the basis for any damages as follows:

The issue then becomes whether the Employer should pay any damages, akin to punitive damages, for it’s [sic] failure to investigate the incident further. It should be underscored that the directing mind of the Employer, Campbell, had not been apprised of the sexual assault allegation.

Any damages would be payable … for Johnson’s and, to some extent, Chabot’s dismissal of the incident as one for which the Grievor was responsible. They were both guilty of the cultural norm of victim blaming. Obviously, neither is vicariously guilty of the sexual harassment themselves. There is a sin of omission not commission.

[13] The Arbitrator concluded that the Employer should only pay nominal damages. He observed again that Ms. Flamand did not initiate the procedure by filing a complaint, and that the issue of her “alleged sexual mistreatment” did not arise until months’ later. In the Arbitrator’s view, “this was obviously prejudicial to the Employer finding the guest and reconstructing the incident”.

[14] The Arbitrator further reasoned as follows:

The Grievor neither complained to Johnson, nor presented as a victim. Both Chabot and Johnson thought that the Grievor was to blame for the encounter. Their view was that she was too flirtatious. Johnson, upon being advised by Chabot of the incident, did not investigate it further; nor did she instruct the Grievor about appropriate conduct. Certainly, Johnson did not think to advise either the Union or the Grievor’s mother about the incident.

While I’m concerned by the Employer’s cavalier attitude to the incident, especially given the Grievor’s minority age, I’m not satisfied to find that substantial damages are owing. As noted above, there’s no evidence to suggest that the Grievor suffered any pain and suffering. Cut free from any issues of reprisal, and from her termination, I am not inclined to use a stiff damage award to correct cultural norms or stereotypes exhibited by Chabot and Johnson.

[15] Based on this reasoning, the Arbitrator awarded Ms. Flamand nominal damages of $1000. He wrote that this was “meant to underscore that employers have duties to protect 17 year-old employees, pursuant to OHSA and OHRC, even in circumstances where the latter are unaware of their best interests”. He characterized the award as one that was “fair and equitable and sends the right message”.

Principles governing this Court’s review

[16] The parties agree that the standard of review of the Arbitrator’s award is reasonableness. The Court’s role is not to review the evidence before the Arbitrator and substitute the decision it would have made in his place. Its task is to consider whether the Arbitrator’s decision was “based on an internally coherent and rational chain of analysis and […] is justified in relation to the facts and law that constrain the decision maker”; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85.

[17] A reviewing court will begin by reading a tribunal’s written reasons, when provided, to “understand the reasoning process followed by the decision maker to arrive at its conclusion”; Vavilov at para. 84. A reasonable decision is justified, transparent and intelligible, and contains no “fatal flaws in its overarching logic”: Vavilov, at paras. 99, 102.

[18] A decision is unreasonable if, read in its context and with a mind to the evidence before the decision maker, “fail[s] to reveal a rational chain of analysis”; Vavilov, at para. 103. A decision must “add up”: it must be “possible to understand the decision maker’s reasoning on a critical point” and the decision should not “exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise”; Vavilov, at paras. 103-04.

[19] A decision is also unreasonable if it fails to take into account the evidentiary record or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” or where the decision maker has “relied on irrelevant stereotypes and failed to consider relevant evidence”.

[20] Finally, a decision may be untenable if it fails to reasonably address the parties’ positions and submissions. As the Court stated in Vavilov, at para. 127:

The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard… . The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties. [Emphasis in the original, citations omitted.]

[21] The Vavilov framework applies to the judicial review of labour arbitration decisions; see, for example, Unifor Local 200 v. Nemak of Canada Corp., 2020 ONSC 5944 (Div. Ct.), at paras. 20-21.

[22] An arbitral award may also be successfully challenged if it is clearly inconsistent with the established approach in similar cases. In Bahniuk v. Canada (Attorney General), 2016 FCA 127, at para. 15, the Federal Court of Appeal emphasized that considerable deference is owed to such an award, but that interference may be warranted where it relies on analysis that is “flatly contrary to the principles accepted in the arbitral jurisprudence”. Although arbitrators are not bound by stare decisis, the misapplication or unreasonable distinguishing of a line of arbitral jurisprudence that is applicable to the case under consideration may constitute a reviewable error: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2013 SCC 34, at paras. 75 and 78; Toronto Police Association v. Toronto Police Services Board, 2013 ONSC 4511, at paras. 42-46; 1425445 Ontario Ltd. v. I.B.E.W., Local 636, 2010 ONSC 1946 (Div. Ct.), at paras. 40 to 45.

The issues to be resolved on this application

[23] The Union contends that the Arbitrator’s decision with respect to the second grievance is plainly unreasonable. Its arguments can be summarized as follows:

(i) the Arbitrator failed to identify the basis for upholding the grievance;

(ii) he failed to determine whether the Employer breached the provisions of the OHSA and the Human Rights Code, RSO 1990, c. H.19 (the “Code”), and did not engage in the appropriate damages analysis under the relevant provisions of these statutes; and

(ii) he relied on flawed logic, misapprehended or overlooked relevant evidence while taking into account irrelevant considerations, and failed to make required findings of credibility.

[24] The Employer contends that the Arbitrator’s decision was reasonable on the record before him. It argues that:

(i) the Arbitrator clearly identified the Employer’s breach of its obligation to investigate as the basis for upholding the second grievance;

(ii) he rejected the Union’s position that the Employer breached the Code, and so did not have to conduct any analysis of the damages that might flow from such a breach; and

(iii) the Arbitrator made no reviewable errors with respect to the evidence and did not engage in any prohibited reasoning.

ANALYSIS

[25] Having considered the parties’ arguments and the record, I conclude that the Union’s position is well-founded on all points.

(i) The Arbitrator failed to identify the basis for upholding the grievance

[26] Before the Arbitrator, the Union took the position that Ms. Flamand was entitled to damages both for sexual harassment at the hands of the Inn’s guest and for the Employer’s failure to investigate the events of November 6, 2016. The Union contended that the Employer’s conduct gave rise to breaches of the Code and the OHSA, and that such breaches warranted a damages award or increased the damages that would otherwise be awarded for the Employer’s breach of its Anti-Harassment Policy. As part of its submissions to the Arbitrator on this issue, the Union filed the Ontario Human Rights Commission’s Policy on Preventing Sexual and Gender-Based Harassment, which spells out the employer’s duty in the Code in responding to a report of workplace sexual harassment.

[27] The Union’s position and submissions on the Employer’s statutory breaches are not referred to anywhere in the Award, nor does the Arbitrator’s analysis suggest that he considered them.

[28] The Arbitrator found that the Employer breached the Anti-Harassment Policy, stating that it “placed a positive duty on the Employer to investigate harassment complaints, even when a complaint was not filed, and required the provision of a report to the complainant in the wake of same, and offered mechanisms for resolution and that “none of this was done”. He mentioned the OHSA and Code only twice, in passing. First, he observed that the Anti-Harassment Policy “mirrored” OSHA. Second, he stated that $1000 award was meant to underscore that employers have duties to protect employees pursuant to OHSA and OHRC. These passing references could suggest that he had determined that the Employer breached its statutory duties as well as those under its own policy. It is, however, impossible to be sure about this.

[29] The Arbitrator did not identify the relevant provisions of the OHSA or the Code in the Award. He did not explain the Employer’s duties under the Code, or any distinction between these duties and duties in the Anti-Harassment Policy or the OHSA. Given that he did not cite any authority, it is impossible to tell if he considered the materials filed by the Union.

[30] It therefore cannot be ascertained, by reading the Arbitrator’s reasons, whether he rejected the Union’s arguments about the statutory breach or simply failed to take them into consideration. If he did in fact consider the arguments, it is not possible to discern his adjudication of them, or whether they had any impact on his assessment of damages.

[31] The Employer takes the position that the Arbitrator could not possibly have found a breach of the Code on the facts before him. I do not agree.

[32] At s. 5(1), the Code guarantees that every person “has a right to equal treatment with respect to employment without discrimination because of … gender”. At s. 7, the Code provides protections against sexual harassment in the workplace including, at s. 7(3), the right to be free from “a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome”.

[33] Canadian human rights tribunals have long recognized that workplace harassment can violate a worker’s equality rights; that an employer has a statutory duty to investigate complaints of workplace harassment and take appropriate measures; and that the duty arises not only when the harasser is an employer or fellow employee, but a guest or invitee of the employer. As the Employer recognizes, in its written submission, that “[i]f an employer discriminates against an employee on the basis of a protected ground under the Code, the employee may be entitled to general damages for injury to dignity, feelings and self-respect”.

[34] In 1992, the Saskatchewan Human Rights Tribunal considered the issue of employer liability for third-party conduct under the provincial human rights code, in Nixon v. Greensides, 20 CHRR 469, 1992 8184 (SK HRT), judicial review denied 1993 8953 (SK QB). Nixon was employed in a restaurant owned by Greensides. She claimed discrimination on the basis of sex under s. 16(1) of the Saskatchewan Human Rights Code, on the grounds that she had been sexually harassed by a customer of the restaurant, who also sublet the space next door from the employer, Greensides.

[35] With respect to the employer’s liability for allegations arising from the conduct of a third-party, the Board held at para. 22 that Greensides was indeed liable:

The law with respect to the duty of an employer in the area of sexual harassment has evolved over the last number of years. Initially, the cases were concerned with harassment by the employer himself or herself. The cases then began to deal with harassment by supervisory staff and to consider harassment by other employees. In my opinion, the consideration of harassment of an employee by customers of the employer falls very much into the same category as harassment by one employee of another employee. It is clear that the employer has the obligation to take steps to deal with harassment by other employees once the harassment is known to the employer. Sexual harassment has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. The employer has an obligation to prevent that from happening and the employee has the right to expect that the employer will take those necessary steps. [Emphasis added.]

[36] A similar claim was considered under the Ontario Code is in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. The complainant was a 16-year-old first-time employee who alleged that she was sexually touched by the brother of the owner of Marineland. She filed a human rights complaint, contending that it failed to investigate her allegation of sexual harassment as required under the Code. The owner’s brother died before the hearing, and the complaint was dismissed because the complainant could not prove that the sexual touching occurred.

[37] The Adjudicator nonetheless recognized that Marineland was statutorily liable for the brother’s conduct and their response to it. The Adjudicator reviewed a well-established body of law, including Nixon v. Greensides, that have recognized an employer’s obligation to reasonably and adequately respond to a complaint of workplace harassment. This duty applies where the harasser is guest or visitor of the employer. He concluded at para. 57:

The right in subsection 5(1) is owed by the employer to its employee. It does not matter if the alleged discriminator/harasser works for the employer or not. This principle — that the employer's obligation is triggered if its employee is discriminated/harassed by a non-employee third party (e.g., visitor or guest) — has been recognized and applied in other jurisdictions. [Citations omitted and emphasis added.]

[38] The decision in Laskowska v. Marineland sets outs criteria for determining whether harassment gives rise to a Code violation and identifies aggravating or mitigate factors. The case has been cited frequently.

[39] Whether or not the Arbitrator would have, on a review of the law and the evidence, found that the Employer breached the Code, I find that his failure to deal in any meaningful way with the Union’s submissions with respect the OHSA and the Code by itself renders the Award unreasonable. As held by this Court in Scarborough Health Network v. CUPE, Local 5852, 2020 ONSC 4577, at paras. 14-15, a tribunal’s decision is the only means by which the parties (and this Court) can know that the issues of concern to them have been the subject of reasoned consideration.

(ii) The Arbitrator failed to determine whether the Employer breached the provisions of the OHSA and the Code, or to engage in the appropriate damages analysis under the relevant provisions of these statutes

[40] The Union contends that the Award is also unreasonable because the Arbitrator failed to consider the appropriate range of damages for the Employer’s violations of the Code and the OHSA. This argument is again well-founded.

[41] Since the Arbitrator did not address the Union’s arguments about a breach of the OHSA or the Code, he did not analyse the appropriate range of damages for such breaches and the factors that would be relevant in determining an award. He instead proceeded from an assumption that damages could be awarded only in exceptional circumstances. At the beginning of the section of the Award that dealt with the second grievance, he summarized its disposition as follows:

The Union seeks a $25,000 damage award for the Employer’s failure to investigate the sexual assault allegation brought by the Union on behalf of the Grievor.

I am, for reasons to follow, not inclined to award substantial damages for the Employer’s failure to investigate same, and I so find. Frankly, arbitral damages are rarely awarded, short of compelling reasons for same. In my view, such compelling reasons are not made out.

[42] The Arbitrator provided no support for his statement that “arbitral damages are rarely awarded, short of compelling reasons”. In Nixon v. Greensides, the complainant was awarded $1000, the same amount as Ms. Flamand was awarded. That, however, was almost 30 years ago. More recently, in AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499, at para. 170, the Ontario Human Right Tribunal canvassed the ranges of damages for breach of s. 5(1). The amounts ranged from $2000 to $50,000. On the facts in AB, a case where a warehouse employee was sexually assaulted and harassed by a supervisor, the Tribunal awarded $55,000 as compensation for “injury to dignity, feelings and self-respect resulting from poisoned work environments and failure to investigate”. In Granes v. 2389193 Ontario Inc., 2016 HRTO 821, an employee who was sexually touched by the employer’s representative on a single occasion received a $20,000 award for the breach of her rights under ss. 5(1) and 7 of the Code.

[43] The Employer points out that the Union did not lead any evidence indicating that Ms. Flamand had any mental or psychological injury as a result of her experience, and that the Arbitrator did not find that she had suffered any damages. For reasons discussed below, I question the Arbitrator’s reasoning in reaching this conclusion. In any event, the Court has been presented with no caselaw stating that a victim of workplace harassment has to show that she has sustained a serious or permanent injury in order to qualify for meaningful damages for a breach of the Code or the OHSA. On the contrary, the caselaw filed by the Union contains examples of fairly generous awards in its absence.

[44] The reasons provided by an administrative decision-maker are the primary focus under the Vavilov framework. A reviewing court considers both the outcome of the decision and the reasoning process that led to that outcome. To use the Employer’s words at para. 36 of its written argument, drawing on para. 87 of Vavilov: “It is therefore possible to obtain a remedy that is within a range of possible, acceptable outcomes, but is based on an unreasonable chain of analysis. In such a scenario, a decision could be quashed because of flaws in reasoning, even if the ultimate remedy was reasonable”.

[45] The Arbitrator could conceivably could have engaged in the necessary analysis of remedies for a breach of the OHSA and/or the Code and concluded, on the evidence, that no only nominal damages should be awarded. His failure to engage in the analysis, however, renders the Award unreasonable. The Arbitrator’s analysis lacks justification because it overlooks legislation and caselaw directly relevant to the issue before him, and because he does not explain why only nominal damages would be appropriate in light of well-established authority to the contrary.

(iii) The Arbitrator’s analysis of damages was unreasonable for other reasons

[46] As the Employer aptly points out, a reasonableness review is not a “line-by-line treasure hunt for error”, nor is it an opportunity for the court to substitute its own assessment of the evidence. The Court is however required, pursuant to the Vavilov framework, to consider whether reasoning is intelligible, transparent and justified. In so doing, it must consider whether the decision relies on irrational or illogical reasoning or irrelevant considerations, or the decision-maker failed to advert to critical facts or misapprehended the evidence.

[47] The Arbitrator’s damages assessment appears to have been driven by his finding that Ms. Flamand suffered no mental or emotional damages as a result of the alleged sexual assault., and that the Employer’s breach consisted of “victim blaming” by Ms. Chabot and Mrs. Johnson. In these circumstances, he held that the damages that should be awarded were “akin to punitive damages” and that a “nominal” amount of $1000 was “fair and equitable and sends the right message”.

[48] Beyond his failure to consider the Employer’s breach of the OHSA and the Code, the Arbitrator’s analysis of damages was unreasonable because it was logically flawed, misapprehended and overlooked evidence, and took into account relevant considerations. He also failed to assess Ms. Flamand’s credibility.

Illogical or irrational reasoning

[49] There were two logical flaws in the Arbitrator’s damages analysis. The first relates to the impact of the delayed disclosure of the sexual assault. The second relates to the justification for the finding that Ms. Flamand suffered no mental or emotional damages as a result of the event.

(a) The finding that the Employer was prejudiced by the delayed investigation

[50] The Arbitrator held that “while not dispositive”, Ms. Flamand’s failure to file a complaint about the sexual assault “was obviously prejudicial to the Employer finding the guest and reconstructing the incident”. He observed that, for example, it was never established that the guests involved in the sexual assault were “one night stays or long term guests of the hotel”.

[51] The Arbitrator did not explain how this finding of prejudice to the Employer informed his damages assessment. I infer that he considered it to be a mitigating factor or, at the very least, a factor consistent with a nominal award. This was unreasonable.

[52] The Arbitrator found that the Employer was obliged to investigate an allegation of harassment even in the absence of a complaint. Any prejudice arising from a lack of evidence about what occurred was the direct result of the Employer’s own breach of its duty to investigate. The prejudice could therefore not inure to the Employer’s benefit in assessing damages. This would reward it for its violation of the Anti-Harassment Policy and any breach of its stand-alone obligations under OHSA and the Code.

[53] On a proper analysis, the lack of evidence about Ms. Flamand’s assailant could reasonably be considered an aggravating factor in assessing damages for the Inn’s OHSA breach. The delay in investigation prevented the Employer not only from investigating the alleged sexual assault against Ms. Flamand, but from ascertaining whether it needed to take steps to protect other vulnerable female employees. If Ms. Flamand’s assailant was a long-term or recurrent guest at the Inn, this might present an occupational hazard for them as well.

(b) The finding that Ms. Flamand suffered no damages

[54] The Arbitrator’s conclusion that the Grievor did not suffer any real damages was based solely on Ms. Chabot’s evidence about Ms. Flamand’s conduct immediately after the sexual assault and nine months later. It was the Arbitrator’s role to make findings of credibility and it was open to him to find that Ms. Chabot was a reliable witness. The conclusion he drew from her evidence, however, was not based on a rational analysis, but on stereotypical thinking about how a victim of sexual assault ought to react.

[55] The Arbitrator summarized Ms. Chabot’s testimony, and its impact on his assessment of damages, as follows:

Ms. Chabot, who testified that the Grievor was excited rather than offended by her experience with the guests, also testified that she ran into the Grievor at the local Walmart in August, 2017, some 9 months after the incident. According to Chabot, the Grievor crowed about Campbell having to pay her $10,000 for sexual harassment. Chabot found the Grievor’s remarks, which she characterized as both loud and public, embarrassing.

While the Union sought to impeach Chabot’s credibility, I found Chabot’s account of both the Grievor’s initial report to her of the incident on November 6, 2016 and the Grievor’s remarks to her, at Walmart, months later, to be both credible and compelling. Chabot’s accounts, and her description of the Grievor’s demeanor, do not support a substantial damage award and I so find.

[56] A finding that Ms. Flamand was “excited rather than offended” in the immediate aftermath of an alleged sexual assault does not rationally lead to a finding that no assault occurred or that its victim suffered no injury from it. The Arbitrator’s reasoning on this issue was based on an antiquated assumption about how a person should react to unwanted sexual touching. There was nothing to contradict Ms. Flamand’s evidence that she attempted to resist being touched by the male guest. A co-worker’s subjective perception of a 17-year old’s immediate reaction to an incident like this cannot be accepted as an accurate gauge of its impact on its victim’s sense of dignity and self-worth. This is all the more so when the co-worker blames the victim for the incident on the theory that she must have invited unwanted sexual attention.

[57] Ms. Chabot’s evidence about Ms. Flamand’s statements to her nine months later, and Ms. Chabot’s embarrassment at hearing these comments, is likewise irrelevant to a determination of the Grievor’s damages. The Arbitrator’s conclusion that Ms. Flamand’s conduct was inconsistent with an injury seems to have been based again on an assumption about how a victim of sexual assault or unwanted sexual touching would act. Ms. Chabot might have found Ms. Flamand’s conduct inappropriate, but it is impossible to logically infer from her evidence that the Grievor suffered no injury to her dignity and self-worth by her interaction with the male guest as well as Ms. Chabot and Mrs. Johnson’s reaction to it.

[58] Leaving aside Ms. Chabot’s irrelevant evidence about Ms. Flaman’s post facto behaviour, the only evidence before the Arbitrator on Ms. Flamand’s injuries was her testimony. He might have rejected this testimony, had he considered it all, or he might have concluded that it did not indicate that she suffered anything beyond a de minimis injury. He could not however base his conclusion about damages on evidence that did not rationally support it.

Misapprehension or overlooking of evidence

[59] The Arbitrator mistakenly found that, after learning about the incident from Ms. Chabot, Mrs. Johnson “did nothing else”. This was directly contradicted by a note in Mrs. Johnson’s work log on November 6, 2016 that referred to a conversation that Mrs. Johnson had with Ms. Flamand about the sexual assault that same day. The Employer conceded that this discussion had taken place in the Agreed Statement of Facts. Mrs. Johnson’s note about it reads as follows:

Marissa F. [Ms. Flamand] said a guy kissed her on cheek & wrapped his leg around her & gave her 3$, So I told her that’s (sic) inappropriate, to flirt & compliment are different. She “over” flirts with workers (Guests) & talks to them for 10 minutes & I have to stop her & tell her to get back to work.

[60] This note was important because it shows that Mrs. Johnson chastised Ms. Flamand for provoking a sexual assault. Based on this evidence and Ms. Chabot’s evidence, Ms. Flamand was twice told that she was responsible for the incident and could be sanctioned for it. Ms. Chabot “censured” Ms. Flamand for allowing a guest to touch her and was “very critical” of her conduct, which she threatened to report to their supervisor. Like Ms. Chabot, Mrs. Johnson assumed that Ms. Flamand had invited an assault by flirting inappropriately with a guest.

[61] As will be discussed further below, the Arbitrator placed great weight on Ms. Flamand’s failure to file a complaint about the alleged sexual assault. Had he taken the evidence about her meeting with her supervisor into account, the Arbitrator might have found this failure much more understandable. Based on Ms. Chabot’s reaction, Ms. Flamand would have understood that she would get into trouble if the incident were reported to her supervisor. That is in fact what happened.

Reliance on irrelevant considerations

[62] The Arbitrator’s damages analysis relied on three irrelevant considerations: (a) the Grievor’s failure to make a complaint about the sexual assault; (b) Mrs. Johnson’s lack of training and knowledge of the Anti-Harassment Policy; and (c) the Union’s motivation for seeking a large damages award.

(a) The Grievor’s failure to make a complaint about the sexual assault

[63] Ms. Flamand’s failure to file a complaint about the sexual assault was mentioned by the Arbitrator no fewer than five times in his analysis of the second grievance. He began by stating that the second grievance “alleges that the Grievor’s termination was also informed by an incident (I decline to call it her complaint) … that she had been sexually assaulted by a hotel guest on November 6, 2016”. In his review of the facts giving rise to the grievance, he noted that Ms. Flamand did not raise the incident with her supervisor, Mrs. Johnson. He repeatedly mentioned the lack of formal complaint by Ms. Flamand again in his damages analysis, in conjunction with his finding that she suffered no mental or emotional damages. In one of the concluding paragraphs in the Award, he again noted that she “neither complained to Johnson, nor presented as a victim”.

[64] There are two reasons why the Arbitrator’s focus on the lack of complaint was unreasonable. First, as already discussed above, he failed to take into account evidence of a discussion during which Mrs. Johnson told Ms. Flamand that she was aware of the sexual assault and blamed her for it. Second, as the Arbitrator found, both the Anti-Harassment Policy and the OHSA required Mrs. Johnson to investigate the incident even in the absence of a complaint. He further noted that the Employer had a higher standard of care towards the Grievor because she was a minor who “deserve[d] to be protected” and that it had a “compromised understanding of protecting herself” based on her age. This finding and observation are at odds with the Arbitrator’s conclusion that a lack of complaint precluded a significant damages award.

(b) Mrs. Johnson’s lack of training and knowledge of the Anti-Harassment Policy

[65] Before reviewing the facts giving rise to the second grievance, the Arbitrator said that certain background facts “needed to be highlighted”. One of these facts was that Mrs. Johnson had no training with respect to her role as supervisor or specifically with respect to her legal duty to investigate harassment complaints, and that she had “little or no knowledge” of the Anti-Harassment Policy.

[66] Mrs. Johnson’s state of knowledge was not mentioned again in the Award. Because he went to the trouble of mentioning it, I again infer that the Arbitrator considered it to be a mitigating factor or, at the very least, a factor consistent with a nominal award. This was unreasonable. An employer’s failure to train supervising employees or to educate them on the workplace Anti-Harassment Policy can only be an aggravating factor in assessing damages. There was, furthermore, no suggestion that Mrs. Johnson failed to investigate the incident because of a lack of familiarity with the Policy. The problem was instead that she focussed uniquely on Ms. Flamand’s perceived misconduct in inviting an assault.

(c) The Union’s motivation for seeking a $25,000 damages award

[67] The Arbitrator also highlighted that, when the grievances were filed, the Union and Mr. Campbell were “at war”. He expressed the view that the Grievor’s case became a “cause célèbre” for the Union, and that the damages it sought on the second grievance ($25,000) “were designed to send a message to Mr. Campbell that the stakes were high”.

[68] As the Union points out, there was no evidentiary basis for this finding. Beyond this, the implication from this passage seems to be that the Arbitrator was predisposed to reject the Union’s submissions on damages because he thought its position had nothing to do with the merits of Ms Flamand’s grievance. This was unreasonable. The Union’s motivation for seeking a non-nominal award should have been irrelevant to the Arbitrator’s consideration of an appropriate range of damages in this case.

The Arbitrator’s failure to assess the Grievor’s credibility

[69] Finally, the Arbitrator failed to assess the Grievor’s credibility. This was problematic as her evidence should have been critical to his assessment of damages.

[70] Although the transcript of the arbitration hearing was not filed as part of the Court record, Ms. Flamand apparently testified that she felt awkward and uncomfortable during her interaction with the Inn’s male guests and wanted to get away. This evidence was not mentioned by the Arbitrator, even though it is difficult to reconcile with Ms. Chabot’s testimony that Ms. Flamand was “excited” by the incident. Because the Arbitrator neglected to make any findings with respect to Ms. Flamand’s credibility, it is impossible to discern whether he simply forgot about her testimony on this point or discounted it because he preferred Ms. Chabot’s evidence.

[71] The Arbitrator’s failure to mention his view about the credibility of Ms. Flamand, in particular relative to that of Ms. Chabot, is problematic for another reason. As the Arbitrator noted, the Ontario Labour Relations Board heard from Ms. Flamand and Mrs. Johnson in the context of an application by the Employer to terminate the Union’s bargaining rights at the Inn. The Board found Ms. Flamand to be credible and Mrs. Johnson not to be credible. Because the Arbitrator mentioned the Board’s credibility assessment in the Award, it was all the more important for him to make and record his own assessment of the Grievor’s credibility.

What is the appropriate remedy?

[72] For all of the reasons I have identified, I conclude that the Arbitrator’s decision on the second grievance must be quashed.

[73] The Union has asked the Court to order a rehearing before another arbitrator. In the alternative, the Union says that this Court should provide directions to the Arbitrator so that he can conduct a fresh hearing on damages or, at the very least, issue a fresh award that appropriately addresses the problems identified by the Court.

[74] When a decision is quashed on judicial review, the appointment of a new arbitrator may be appropriate and necessary even when there is no evidence of actual or reasonably apprehended bias. In Universal Settlements International v Duscio, 2011 ONSC 968, var’d in part at 2012 ONCA 215, the Court of Appeal observed that a decision-maker may have difficulty in divorcing themselves from conclusions they have already reached and truly considering an issue afresh.

[75] Although Universal Settlements is not a labour arbitration case, this reasoning applies here. The Arbitrator’s reliance on stereotypical reasoning is also a concern.

[76] For that reason, I would set aside the portion of the Award dealing with the second grievance and direct that a fresh hearing be held before a new arbitrator.

Disposition

[77] The application is granted, the portion of the Award dealing with the second grievance is set aside, and the Court directs that a fresh hearing on the grievance be held before a new arbitrator. Further to the parties’ agreement on costs, the Union is entitled to costs of $10,000, inclusive of fees, disbursements and HST, for all proceedings in connection with the application.

Justice Sally Gomery

I agree.

Justice Harriet Sachs

I agree.

Justice Freya Kristjanson

Released: July 19, 2021

[^1]: I will refer to Rhonda Johnson by her first name to avoid any confusion with her sister. No disrespect is intended by this.