Conduct Extraneous to the Working Relationship

Apart from the above issue, the next issue which frequently arises is whether the relevant conduct has taken place within the context of an employment relationship. Often conduct which is alleged to be offensive based on a human rights violation, particularly when sexual in nature occurs outside of the physical confines of the office or work environment and also often beyond normal working hours.

The cases which follow deal with essentially fact-finding endeavours to determine whether conduct which was external to the work environment in geography or time may nonetheless be work related.

Apart from the analysis of these cases, which clearly advocates a broad liberal approach to the question, any threats of adverse workplace consequences, or conversely positive employment-related rewards based on human rights issues, no matter where such events may occur, are most assuredly within the jurisdiction of the tribunal. ¹

The Ontario Court of Appeal in Simpson v Consumers Association of Canada ² dealt with the issue of conduct which did not take place in the immediate workplace, but rather in settings beyond the physical premises of the office.

This was not a human rights complaint but a civil lawsuit brought by Mr. Simpson against his employer who had terminated him due to allegations of sexual harassment. Mr. Simpson was not only successful at trial, but ironically was also awarded incremental damages for unfair conduct.

CAC appealed successfully. One of the issues considered by the Court of Appeal was the impact of the finding that certain of the alleged events of misconduct took place at locations external to the office premises as the employer was required to prove workplace misconduct.

Three of the occasions alleged against the plaintiff took place at company meetings or retreats held at hotels where business meetings, with a social component, were held. The fact that such events occurred after the completion of business meetings did not mean, the Court determined, that such conduct was outside the workplace and hence external to the employment context.

This conclusion that such events were work-related may have been seen to be predictable, but the events which took place at the plaintiff’s cottage raised a different dimension. Again, the context was seen as work related. Staff had been present at the cottage because the plaintiff was on vacation and his advice was required on certain timely issues. Following the work assignment, the staff were invited to remain and recreate.

Notably, the Court of Appeal overturned the trial judge on this issue:

It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact. In this case, the trial judge erred by making an overall finding without considering the individual circumstances of each incident.

The moral of the story is that a work relationship is not one confined to the office or business premises, but rather a broad contextual view must be applied to determine whether there is an employment connection to the event. ³

A similar conclusion was reached in a human rights context in which the alleged offensive conduct took place at a firm retreat in South Carolina, ⁴ which was considered to be a team building event.

To the same effect was the finding in a civil trial in the context of an after-event party in a hotel room, which was owned by the employer, attended by employees and spouses, ⁵ and a barbeque where social aspects of the event were seen as work-related ⁶, as, in part, the event was seen as a celebration of the progress of the employer.

Essentially the decision maker will make a fact finding analysis to determine if the questioned conduct was in the context of an employment relationship, even though it may have took place off hours and outside the physical boundaries of the workplace setting.

Email messages, twitter and Facebook accounts or other internet postings will also face such a test. There is no reason why such comments made in cyberspace could not fit into the category of workplace communications ⁷ in the appropriate context.

The decision of the Tribunal in S.S. v Taylor (Flaherty) noted that while some of the events took place outside the business premises of the restaurant, that nonetheless, they were “sufficiently connected” to the workplace to allow for jurisdiction.

More importantly, the decision spoke to the issue that such comments made by the respondent “had job-related consequences” for the applicant:

Importantly, all of the incidents, regardless of where they occurred, had job-related consequences for the applicant. Perhaps the clearest example of this is the applicant’s evidence that could not face returning to work at the Restaurant knowing that her boss and some of her co-workers had thought and talked about her as described in the voicemail message.

The conclusion that “work-related consequences” as the sole factor would allow for jurisdiction appears excessive. If so, any exchange between two people, where ever this may take place, who happen to have the same employer, would give rise to jurisdiction. This factor ought not to suffice as a stand-alone test.

A similar fact based analysis was undertaken in the decision of the Canadian Human Rights Tribunal (Theberge, Dionne and Jakhu) in the December 1992 case of Cluff v Department of Agriculture, in this case finding that there was no activity which took place in the course of the employment relationship and hence declined jurisdiction.

The complainant had alleged that the personal respondent had sexually harassed her at the annual conference organized by her for the Eastern Canada Farm Writers Association. The complainant was then employed by the Department as an information officer, while the personal respondent held the position of program officer. The event was not an employer function but was nonetheless work related.

The complainant’s prime responsibility was the preparation of radio programmes. It was with the approval and support of her employer that she became active on the executive of the ECFWA. Her participation at the conference was agreed to be during normal working hours. Her registration fee for the conference was paid by the employer.

The questioned events took place at the hospitality suite arranged for the conference. Adjoining the suite was a bedroom portion which was separated from the remaining area by an archway, as opposed to a locked door.

The events of the evening affair commenced at 9 pm in the hospitality suite. By 2 a.m., the complainant was alone in the suite accompanied by the personal respondent, also an employee of the Department and senior to her in responsibility and another male person unrelated to the employer. It was between 2 and 3 am that the alleged event of sexual harassment took place.

The following test was adopted for the purpose of determining whether the alleged harassment took place “in the course of employment” and/or “in matters relating to employment”:

An employee is in the course of employment when, within the period covered by the employment, he or she is carrying out:

1. activities which he or she might normally or reasonably do or be specifically authorised to do while so employed;
2. activities which fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it;
3. activities in furtherance of duties he or she owes to his or her employer; or
4. activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.

The court concluded:

An employee is still in the course of employment when he or she is carrying out intentionally or unintentionally, authorised or unauthorised, with or without the approval of his or her employer, activities which are discriminatory under the CHRA and are in some way related or associated with the employment. However, an employee is considered to have deviated from the course of his or her employment when engaged in those activities which are not related to his or her employment or are personal in nature.

On the facts of the case, it was determined that the complainant’s role in the conference was not one which was mandated as an employment term with the Department which had no control or power over the ECFWA. The attendance of the personal respondent was also not related to his employment. For these reasons, the panel declined jurisdiction.

The decision was reviewed in 1993 by Gibson J. of the Federal Court, who upheld the decision, but for differing reasons which are of significance to the analysis. The Federal Court, in applying the standard of correctness, agreed with the four fold test set out by the Tribunal, noting that these factors are disjunctive.

The Federal Court disagreed with the conclusion that the activities in question were not “in the course of employment” as the first two tests were each met.

The Court concluded, in essence, that once the hospitality suite closed, so did the employment relationship which ended the day for employer liability. Gibson J. stated:

At some time during the night in question, before 2:00 a.m. and at or shortly after the time the hospitality suite effectively closed, the complainant ceased to be in the course of employment or engaged in matters related to employment. To conclude otherwise would place an intolerable burden of responsibility on employers of those who travel in the course of their employment and of those who attend conferences and the like on behalf of their employer.

The issue then being determined was the existence of an employment relationship at the time of the assault. Liability would not necessarily have followed as the federal Code contained a due diligence defence to the employer liability, ⁸ an issue which was not reviewed. The Court concluded that liability would have automatically followed, which was not correct.

t is difficult to countenance the reasoning that had the harassment occurred during the currency of the social event, apparently an employment relationship would be found, yet an event which took place later in the evening failed to be caught by the relationship which brought her to the evening itself. This decision stands at odds with the reasoning of the British Columbia and Ontario Court of Appeal referenced above and that of the definition of “job-related consequences” set out in S.S. v Taylor.

The test set out by the Federal Court has had a questionable reception. It has been largely ignored in most jurisdictions, yet remains the accepted standard in the Alberta human rights tribunal decisions ⁹ and the federal human rights tribunal. ¹⁰

A subsequent decision of the Ontario Tribunal found that after hours conduct at a bar was sufficient to establish jurisdiction.

1. HRTO (Hart) in O.P.T and M.P.T v Presteve Foods and Jose Pratas
2. Simpson v CAC, (leave to appeal refused by the Supreme Court of Canada with costs, [2002] S.C.C.A. No. 83)
3. See also Tellier v. Bank of Montreal (1987), 17 C.C.E.L. 1 (Ont. Dist. Ct.) a civil action for wrongful dismissal;
4. Sutton v Jarvis Ryan (Sengupta) HRTO 
5. van Woerkens v Marriott Hotels of Canada, in a civil action for wrongful dismissal.
6. Davison v Nova Scotia Construction Safety Association, a decision of the Nova Scotia Human Rights Board of Inquiry, upheld in the N.S. Court of Appeal
7. Taylor-Baptiste v OPSEU (Wright) HRTO
8. This issue of the employer defence of due diligence is reviewed subsequently. S. 65 of the Canadian Human Rights Act sets out the defence.
9. Schofield v Alta Steel, Abrahams v Calgary Board of Education
10.   Bushey v Sharma