Sexual Harassment in the Workplace: NK v. Botuik

On April 24, 2020, the Human Rights Tribunal of Ontario issued a decision in the case NK v. Botuik, 2020 HRTO 345 awarding the Applicant $170,000.00 in general damages against her former supervisor Mr. Botuik. This represents the second-highest amount of damages ever awarded by the Tribunal in a sexual harassment case. Considering the significant damage award, employers should ensure they take the lessons from this case to best protect themselves from liability for similar damages involving sexual harassment in the workplace.

Background of the Case

The applicant was employed under two group care homes under Alan Stewart Homes Ltd. Mr. Botuik was her supervisor and in charge of scheduling her shifts and made clear to the applicant that he had full discretion of the schedule.

Shortly after the applicant commenced her employment, Mr. Botuik began repeatedly sexually harassing the applicant, which became increasingly severe as time went on, progressing from comments to physical touching to sexual acts, using his supervisory position over her to pressure her into increasingly severe unwanted sexual situations and encounters. Feeling defeated and lost, the applicant was forced into a non-consensual relationship with Mr. Botuik.

Mr. Botuik’s conduct culminated in his violent sexual assault of the applicant when she attempted to end the relationship. Mr. Botuik had the applicant arrested for assaulting him and cancelled her work shifts. When the applicant complained to her employer about Mr. Botuik’s sexual harassment and assault, both she and Mr. Botuik were dismissed from employment.

The Decision of the Tribunal

At the Ontario Human Rights Tribunal (“OHRT”), the Vice-Chair commented that “it is evident that the events in this matter are among the most serious and egregious ever brought before this Tribunal”. The Vice-Chair also stated that “what occurred encompasses virtually the entire spectrum or continuum of sexually harassing behaviour in the workplace, necessitating a significant award of compensation”.

Despite the supposed relationship between the applicant and Mr. Botuik, the OHRT found that “fearful compliance does not constitute true consent”. Since the applicant only entered into this relationship out of fear or reprisal, it was not a consensual relationship nor was his conduct consensual, opening Mr. Botuik up to liability for damages. Furthermore, Mr. Botuik’s violent sexual assault at her home was seen as a continuation of his workplace conduct, bringing it under the scope of the Ontario Human Rights Code.

In awarding the applicant $170,000.00 in general damages, the Ontario Human Rights Tribunal noted that the highest damage awards are based upon the vulnerability of the applicant and significant acts of reprisal. Vice-Chair Thorne found the Applicant’s history of a sexual abuse survivor made her highly vulnerable, that Mr. Botuik’s conduct had a significant devastating impact on her, and that Mr. Botuik had engaged in significant reprisal through his position of power over her, ultimately leading to her loss of employment, an arrest by the police, and outright violence.

Takeaway 

Employers should note that given the finding that a relationship that appears to be consensual may not be in reality given the facts, it is important to investigate any sexual harassment in the workplace complaints even where the appearance of a consensual relationship exists or is alleged. Where there is an imbalance in the power dynamic within a workplace relationship, this power dynamic should be looked at in relation to whether there truly is consent. Additionally, the state of mind of the complainant in the relationship should be carefully considered.

Failure to give these considerations when faced with a sexual harassment complaint can put an employer on the hook for significant human rights damages. Employers should consult with an employment lawyer when conducting a workplace investigation into a sexual harassment complaint to ensure the investigation is conducted properly.

For employees, make sure you always take notes and details of violations when and if they happen. 

Contact Us

If you are an employer and want to know more about how best to conduct a workplace investigation, or an employee experiencing sexual harassment in the workplace, our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.