Young v. Via Rail Canada Inc.

Young v. Via Rail Canada Inc.
Collection
Canadian Human Rights Tribunal
Date
2023-06-27
Neutral citation
2023 CHRT 25
File number(s)
T2225/4717
Decision-maker(s)
Mercer, Kirsten
Decision type
Decision
Grounds
Sex
Summary:
This case is about discrimination and harassment on the basis of sex and sexual harassment in the work environment. It also concerns the employer’s responsibility.
Ms. Young and Mr. Sawchuk were both employed as locomotive attendants at VIA Rail. Ms. Young complained of Mr. Sawchuk's conduct towards her at their workplace over a two-year period. Several incidents showed this offensive conduct. For example, Mr. Sawchuk observed Ms. Young in a way that was not required for his job. He refused to leave the locomotive cab when she asked him. He swore at her and made rude and unprofessional comments in person and over the radio, including using gendered slurs and sexist language. He belittled her in front of her colleagues because of the tone of her voice as a woman and criticized her clothing. He stood very close to her in circumstances that caused her distress. He demanded that communications be broadcast on the open radio, even when close by. He criticized her publicly for carrying out a manoeuvre he had instructed. He tried to intimidate her in ways that put safety at risk.
The Tribunal found that the individual incidents, taken on their own, might appear unimportant. However, their cumulative impact over almost two years showed a pattern, a campaign of harassment and abuse. Taken together, these incidents constituted adverse treatment. Sex was a factor in that adverse treatment. It need not be the primary factor or an intentional cause. For these reasons, Mr. Sawchuk’s conduct amounted to discrimination on the basis of sex in the course of employment.
The conduct was unwelcome and persistent, and Ms. Young notified the employer of it. Because of this, the Tribunal found that Mr. Sawchuk’s conduct was also harassment on the basis of sex. However, it was not sexual in nature and therefore not sexual harassment.
The Tribunal found VIA responsible for the actions of its employee, Mr. Sawchuk. VIA did not show that it exercised all due diligence to prevent those actions or to mitigate their effects. VIA did not take Ms. Young’s concerns sufficiently seriously. VIA did not address the situation diligently to prevent the discriminatory conduct. VIA had a workplace harassment policy but chose to apply its code of conduct instead. Its response also came after months of escalating harm. In addition, there were few documents and details about the investigation, and the final decision was not made independently.
The Tribunal ordered VIA to pay monetary compensation. It also ordered systemic remedies aimed at making sure VIA has in place adequate human rights and anti-harassment policies and procedures.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
25
Date:
June 27, 2023
File No.:
T2225/4717
Between:
Jennifer Young
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
VIA Rail Canada Inc.
Respondent
Decision
Member:
Kirsten Mercer
Table of Contents
I. Overview & Summary of Decision 1
II. Issues 2
A. Preliminary Issues 2
1. Historic and Continuing Gender Diversity at VIA 2
2. The Reasonable Woman vs the Reasonable Person in the Same Circumstances 3
B. Main Issues 5
III. Applicable Law 5
IV. Analysis 11
A. Ms. Young Was the Subject of Discriminatory Conduct 11
1. Adverse Differential Treatment in the Course of Employment (s. 7(b) of the CHRA) 11
2. Harassment on the Basis of Sex (s. 14(1)(c) of the CHRA) 42
3. Sexual Harassment (s. 14(2) of the CHRA) 45
B. VIA is Liable for the Discriminatory Conduct Under s. 65 of the CHRA 46
4. The Position of the Respondent 47
5. The Position of the Commission 48
6. The Position of the Complainant 49
7. Analysis of the Respondent’s Liability for the Discriminatory Conduct 49
C. Compensation and Policy Remedies Are Required to Prevent Reoccurrence 60
1. Compensation for Pain and Suffering Pursuant to s. 53(2)(e) of the CHRA 60
2. Compensation for Willful or Reckless Conduct Pursuant to s. 53(3) of the CHRA 62
3. Damages for Lost Wages Pursuant to s. 53(2)(c) of the CHRA 64
4. Costs Incurred in Pursuit of the Complaint 67
5. Interest (s. 53(4) of the CHRA) 70
6. Policy Remedies (s. 53(2)(a) of the CHRA) 70
V. Decision 72
VI. Conclusion 73
I. Overview & Summary of Decision [1] Ms. Jennifer Young (the “Complainant” or “Ms. Young”) alleges that her employer, VIA Rail Canada Inc. (the “Respondent” or “VIA”) is liable for harassment perpetrated against her on the basis of her sex by her fellow employee, Mr. Kevin Sawchuck, who is not a party to these proceedings. Ms. Young relied on the protections afforded by s. 7(b) of the Canadian Human Rights Act, RSC 1985, c.H-6 (the “Act”) (against discrimination in the course of employment) and s. 14 of the Act (against harassment on the basis of sex in matters related to employment).
[2] There was no dispute before the Tribunal that Mr. Sawchuk had engaged in adverse and unprofessional conduct towards Ms. Young. In fact, VIA found that Mr. Sawchuk’s treatment of Ms. Young breached VIA’s Code of Conduct, and he was given significant discipline. VIA disputes, however, that Mr. Sawchuk’s conduct was discriminatory within the meaning of the Act or included harassment on the basis of sex or sexual harassment. VIA also disputes that it is liable for Mr. Sawchuk’s conduct.
[3] The Canadian Human Rights Commission (the “Commission”) supported Ms. Young’s discrimination complaint and argued that VIA was indeed liable under the Act for Mr. Sawchuk’s conduct. In particular, the Commission argued that VIA had failed to adequately respond to Ms. Young’s initial complaints about Mr. Sawchuk’s conduct and that VIA’s internal investigation was inadequate. Thus, the Commission argued that VIA was liable for Mr. Sawchuk’s conduct.
[4] For the reasons below, I have determined that Mr. Sawchuk engaged in discriminatory conduct towards Ms. Young, in breach of the Act. Specifically, I have found that Mr. Sawchuk engaged in conduct that constitutes discrimination in the course of Ms. Young’s employment and harassment on the basis of sex. I have found that Mr. Sawchuk’s conduct was not of a sexual nature and have therefore not found a breach that engages the protections of s. 14(2) of the Act. I have further determined that VIA is not entitled to avoid statutory liability for the workplace conduct of its employee, Mr. Sawchuk, as it failed to exercise all due diligence to prevent or mitigate the discriminatory conduct.
II. Issues A. Preliminary Issues 1. Historic and Continuing Gender Diversity at VIA [5] The Tribunal takes judicial notice of the fact that, historically, rail work in Canada (including driving and servicing trains) was a predominantly male occupation.
[6] The Tribunal averted to this context at the hearing during closing arguments, and VIA elected to make supplementary written submission on this point.
[7] VIA argued that there was “no evidence” that the Toronto Maintenance Centre (“TMC”) was a male-dominated workplace and argued that “women’s presence in and contribution to the workplace at the Toronto maintenance Centre was well established.” VIA conceded that the three managers involved with the facts of this case were all men but asserted that they had all received appropriate training regarding harassment and VIA’s Code of Conduct.
[8] VIA noted that Ms. Leslie Selesnic played an important role in the workplace investigation conducted in this case and noted the involvement of Ms. Barbara Anne Blair.
[9] Despite VIA’s arguments, the evidence supports a finding that the TMC, and specifically the night shift of locomotive attendants who are most directly implicated in the events at issue in this Complaint, represent an historically male group of workers. This does not mean that there are no women present, which is obviously not the case. Rather, it means that the Complaint is situated within a workplace context with norms and values that are shaped by the dominant culture of the workforce and the mostly male workforce which has historically held those roles.
[10] At the relevant time, the controllers were all men. The shift supervisor was a man, and, during his evidence, the senior manager of the TMC, Mr. Zeke Medeiros, identified that the historic and ongoing lack of gender diversity in this workplace was a problem that he was committed to addressing and identified the railway as a “male dominated industry.”
[11] VIA’s assertion that there is no evidence upon which the Tribunal could conclude that the TMC or rail work more generally has historically been a male work environment is simply inaccurate. In fact, I greatly appreciate the fact that Mr. Medeiros testified with sincerity about his concerns regarding gender diversity at VIA and the TMC specifically. He noted that, when Mr. Sawchuk started at the TMC in (around) 1985, there was only one woman working “back then” and for about a decade they went without any women in the department until Ms. Julie Trepanier and Ms. Teona Kindt were hired.
[12] Mr. Medeiros also testified that he was pleased when Ms. Young was hired into the locomotive attendant program, stating that “it was good to see a woman entering the program.”
[13] When the Tribunal observes that the railways are historically male-dominated, it is because properly understanding the historical and normative context of the complaint can be relevant to understanding and addressing discrimination, if it is found to exist. The history does not excuse discrimination nor does acknowledging that history mean that a workplace is doomed to relive it in perpetuity.
[14] However, until we are able to name and identify the ways in which historical and ongoing privilege shape a workplace, we are limited in our ability to identify discrimination when it occurs and to respond adequately to address and prevent it.
[15] The Tribunal applauds the initiatives undertaken by VIA to ensure that its workplace continues to reflect the full gender diversity of the communities it serves, some of which were noted by Mr. Medeiros in his evidence. It is in that spirit of striving for discrimination-free work environments that the Tribunal renders its decision.
2. The Reasonable Woman vs the Reasonable Person in the Same Circumstances [16] At the end of the hearing, having had the benefit of the parties’ closing arguments, and based upon the Tribunal’s consideration of the Federal Court of Appeal’s decision in Stadnyk v. Canada (Employment and Immigration Commission), 2000 CanLII 15796 (FCA) [Stadnyk], I asked the parties whether my analysis of the conduct detailed in the Complaint and whether it would or should have been seen as unwanted should be based on the standard of the reasonable person or the reasonable woman, and if that distinction was important in this case.
[17] VIA argued that it would be prejudiced by the application of a reasonable woman standard in this case, as it would have lost the opportunity to call two of the other women who worked with Mr. Sawchuk, whose testimony about his conduct might have had some bearing on the Tribunal’s analysis.
[18] I disagree.
[19] Whether one applies the reasonable woman standard articulated by the Tribunal and upheld by the Federal Court of Appeal in Stadnyk or the standard of the reasonable person in the circumstances articulated by the Tribunal in Canada (Human Rights Commission) v. Canada (Armed Forces), 1999 CanLII 18902 (FC) [Franke], (upon which the Respondent purports to rely), in this case (and indeed in the preponderance of cases of sexual and gender harassment), the reasonable person in the circumstances should in fact be a woman.
[20] The issue of Mr. Sawchuk’s relationships with his female co-workers, and in particular female co-workers who do not share Mr. Sawchuk’s approach to the work of a locomotive attendant, was apparent to all parties to this proceeding from the outset. Numerous references to Mr. Sawchuk’s relationship with Ms. Kindt and Ms. Trepanier, and other women with whom Mr. Sawchuk interacted in the workplace, were made throughout the hearing and in the parties’ submissions, including in VIA’s submissions.
[21] Despite this, VIA elected not to call either Ms. Trepanier or Ms. Kindt as a witness in these proceedings. This decision, made for reasons known only to VIA, meant that the assertions that had been made at the hearing about Mr. Sawchuk’s working relationship with women in general, and with each of them, could not be put to these women nor could their answers be tested on cross-examination. Whether or not the parties were surprised by the Tribunal’s questions about the Stadnyk decision, it is not credible to assert that any party lacked notice of the issue of Mr. Sawchuk’s relationship with his female co-workers. The fact that VIA chose not to call any of Mr. Sawchuk’s female co-workers, whatever its reasons may have been, does not now give rise to a suggestion that it would be prejudiced by the Tribunal’s consideration of what a reasonable woman (or a reasonable person in the circumstances) would perceive to be unwelcome conduct.
[22] Having said all of that, it is my view that the reasonable person in the circumstances of this Complaint is a reasonable woman. And, in any case, I find that it is open to the Tribunal to rely on the Stadnyk decision, which is binding authority on this Tribunal.
B. Main Issues
Does Mr. Sawchuk’s conduct towards Ms. Young constitute a breach of the Act?
Does Mr. Sawchuk’s conduct constitute discrimination on the basis of Ms. Young’s identity as a woman, or sex, in the course of her employment in the meaning of s. 7(b) of the Act? Does Mr. Sawchuk’s conduct represent harassment on the basis of Ms. Young’s identity as a woman in the meaning of s. 14(1)(c) of the Act? Does Mr. Sawchuk’s conduct constitute sexual harassment in the meaning of s. 14(2) of the Act?
If the answer to any of a, b or c above is yes, is VIA liable for Mr. Sawchuk’s conduct, by operation of s. 65 of the Act? If so, what remedy should be ordered against VIA?
III. Applicable Law [23] Throughout the course of the hearing into this Complaint, and in their closing submissions, the parties focussed their submissions on Mr. Sawchuk’s conduct as harassment on the basis of sex within the meaning of s. 14 of the CHRA (sometimes conflating the idea of harassment on the basis of sex with sexual harassment). Ms. Young also relied upon s. 7(b) of the CHRA to complain about adverse treatment in the course of her employment related to her identity as a woman.
[24] Under s. 7(b) of the CHRA, it is a discriminatory practice, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 14(1)(c) of the CHRA provides that it is a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination.
[25] The Tribunal’s analysis of a complaint of adverse differential treatment in the course of employment (s. 7(b) of the CHRA) and its analysis of a workplace harassment complaint (s. 14 of the CHRA) are both concerned with identifying workplace conduct that discriminates against a complainant on the basis of a protected characteristic. However, the test employed in the Tribunal’s analysis of each of the statutory grounds invoked in this complaint is somewhat different, so my reasons will analyze each of those claims below.
i. Discrimination in Employment (s. 7(b) of the CHRA)
[26] In the context of an inquiry into a human rights complaint, the burden of proof at the initial stage rests with the complainant. This analysis is often referred to as establishing a prima facie case of discrimination. The use of this Latin maxim is unnecessary, however, as it makes the law less accessible to Canadians and may even give rise to misunderstandings concerning the applicable law in matters related to discrimination (see similar comments in Duverger v. Aeropro, 2019 CHRT 18 (CanLII), at para 14 [Aeropro], Simon v. Abegweit First Nation, 2018 CHRT 31, at para. 51. See also Emmett v. Canada Revenue Agency, 2018 CHRT 23, at paras. 53 and 54 as well as Vik v. Finamore (No. 2), 2018 BCHRT 9).
[27] Regardless of what this initial stage of the analysis is called, the applicable analysis remains the same: the complainant’s burden is to make a case “[...] which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer” (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536, at para 28).
[28] The three-step analysis for these claims of discrimination was established by the Supreme Court of Canada in Moore v. British Columbia (Education), [2012] SCR 61 [Moore], at paragraph 33. According to this analysis, the complainant must demonstrate:
(1) that they have a characteristic protected from discrimination under the CHRA;
(2) that they experienced an adverse impact; and
(3) that the prohibited ground of discrimination was a factor in the adverse impact.
[29] The analysis of a complaint alleging adverse differential treatment in the course of employment within the meaning of s. 7(b) of the CHRA will follow the Moore test (see, e.g., Aeropro).
[30] The evidence presented to the Tribunal must be analyzed on a balance of probabilities, and it is not necessary to demonstrate that the prohibited ground was the sole factor in the adverse impact experienced by the complainant (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] SCR 789 [Bombardier]).
[31] Direct proof of discrimination is not necessarily required, nor must the complainant demonstrate an intention to discriminate (see Bombardier, at paras 40 and 41). Discrimination is often not open or intentional. That is not the question before the Tribunal. Instead, the Tribunal must determine whether the conduct, regardless of intent, had an adverse differential impact on Ms. Young. In doing so, the Tribunal must consider all of the circumstances that gave rise to the Complaint in order to determine whether a subtle scent of discrimination is present (see Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) [Basi])
[32] The Tribunal can draw inferences from circumstantial evidence when the evidence presented in support of allegations make such an inference more probable than other possible inferences or hypotheses (see Basi). That said, the circumstantial evidence must be tangibly related to the impugned conduct (see Bombardier, at para. 88).
ii. Harassment on the Basis of Sex (s. 14(1)(c) of the CHRA) [33] The Tribunal’s analysis of a complaint made pursuant to s. 14 of the Act, although ultimately concerned with identifying discriminatory conduct, takes a somewhat different approach.
[34] Harassment is not defined in the CHRA. However, the case law of the Tribunal and the reviewing courts have framed the applicable analysis for a harassment complaint made pursuant to s. 14 of the Act.
[35] In Morin v. Canada (Attorney General) 2005 CHRT 41 [Morin], Member Hadjis wrote the following, in paragraphs 245 and 246:
[245] It is a discriminatory practice, under s. 14 of the Act, to harass an individual on a prohibited ground of discrimination in matters related to employment.
[246] Harassment, as proscribed under the Act, has been broadly defined as unwelcome conduct related to one of the prohibited grounds of discrimination that detrimentally affects the work environment or leads to adverse job-related consequences for the victims (Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252 at 1284; Rampersadsingh v. Wignall (No. 2) (2002), 45 C.H.R.R. D/237 at para. 40 (C.H.R.T.)). In Canada (HRC) v. Canada (Armed Forces) and Franke, [1999] 3 F.C. 653 at paras. 29-50 (F.C.T.D.) (“Franke”), Madame Justice Tremblay-Lamer articulated the test for harassment under the Act. In order for a complaint to be substantiated, the following must be demonstrated:
i. The respondent's alleged conduct must be shown to be related to the prohibited ground of discrimination alleged in the complaint (in the present case, the Complainant's colour). This must be determined in accordance with the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms.
ii. The acts that are the subject of the complaint must be shown to have been unwelcome. This can be determined by assessing the complainant's reaction at the time of the alleged incidents of harassment and ascertaining whether [they] expressly, or by [their] behaviour, demonstrated that the conduct was unwelcome. A verbal “no” is not required in all circumstances - a repetitive failure to respond to a harasser's comments constitutes a signal to [them] that [their] conduct is unwelcome. The appropriate standard against which to assess a complainant's reaction will also be that of a reasonable person in the circumstances.
iii. Ordinarily, harassment requires an element of persistence or repetition, but in certain circumstances even a single incident may be severe enough to create a hostile environment. For instance, a single physical assault may be serious enough to constitute harassment, but a solitary crude joke, although in poor taste, will not generally be enough to constitute harassment since it is less likely, on its own, to create a negative work environment. The objective, reasonable person standard is used to assess this factor as well.
iv. Finally, where a complaint is filed against an employer regarding the conduct of one or more of its employees, as in the present case, fairness demands that the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct. This requirement exists where the employer has a personnel department with a comprehensive and effective harassment policy, including appropriate redress mechanisms, which are already in place.
[36] In its Morin decision, the Tribunal relied on the Supreme Court of Canada’s decision in Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252 [Janzen] and the Franke decision by the Federal Court, both of which were cited before me in this case.
[37] The Morin principles have been adopted by our Tribunal in various decisions (see for example, Aeropro, Dawson v. Canada Post, 2008 CHRT 41, Hill v. Air Canada, 2003 CHRT 9, Alizadeh-Ebadi v. Manitoba Telecom Services Inc., 2017 CHRT 36, Croteau v. Canadian National Railway Company, 2014 CHRT 16, Day v. Canada Post Corporation, 2007 CHRT 43, Stanger v. Canada Post Corporation, 2017 CHRT 8 [Stanger], Siddoo v. International Longshoremen’s and Warehousemen’s Union, Local 502 2015 CHRT 21 [Siddoo], affirmed 2017 FC 678).
iii. Sexual Harassment (s. 14(2) of the CHRA) [38] The Act does not include an express definition of sexual harassment. However, the Supreme Court of Canada has defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment” (Janzen, at 1284). This understanding of the meaning of sexual harassment has been repeatedly confirmed in the decades since its articulation by the Supreme Court of Canada in courts, tribunals and by arbitrators across Canada, including in decisions of this Tribunal (see most recently, Peters v. United Parcel Service Canada Ltd. and Gordon, 2022 CHRT 25 [Peters].)
[39] In Franke, the Federal Court determined that the legal test in Janzen ought to be applied in decisions made by this Tribunal. The Federal Court rearticulated the elements of the test in Janzen:
1) unwelcome conduct;
2) conduct that is sexual in nature; and
3) either a pattern of persistent conduct or a single serious incident.
And it added a fourth requirement:
4) that the employee notify the employer of the alleged sexual harassment where the employer has a human resources department and a comprehensive and effective sexual harassment policy, including redress mechanisms in place.
iv. Liability for the Conduct of an Employee (s. 65 of the CHRA)
[40] If a complainant is able to meet the burden of proof for their case, the respondent may avail itself of a defence provided in the CHRA, when possible, or limit liability, where applicable, under subsection 65(2) of the CHRA. In this case, the Respondent seeks to rely on s. 65 to limit its liability in the event that the Tribunal finds that Ms. Young’s Complaint is substantiated.
[41] Subsection 65(1) of the CHRA provides that “any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall be deemed to be an act or omission committed by that person, association or organization.” According to subsection 65(2), this presumption will not apply “if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof.”
[42] In effect, if the Tribunal finds discriminatory conduct on the part of an employee, an employer can avoid being held liable for that conduct if it can demonstrate that it did not condone or consent to the conduct and that it responded in a reasonably effective manner to address or prevent the conduct.
IV. Analysis A. Ms. Young Was the Subject of Discriminatory Conduct [43] Ms. Young’s Complaint is, essentially, that Mr. Sawchuk treated her in a way that discriminated against her as a woman. In her Complaint, her Statement of Particulars, throughout the course of the hearing and in her closing argument, Ms. Young described the adverse treatment as harassment, as did the Commission.
[44] As is detailed above, there are two sections of the Act that address the conduct that forms the basis of Ms. Young’s Complaint: s. 7(b) and s. 14, both of which are identified in the pleadings in this matter. While the impugned conduct is the same in each case, the Tribunal’s analysis of each statutory protection is somewhat different. Therefore, I will consider and make findings with respect to the facts alleged by Ms. Young and analyze that conduct first in light of the Tribunal’s test for s. 7(b). I will then consider the same conduct in light of the Tribunal’s test for harassment in relation to sex in matters related to employment (s. 14(1)(c)), and, finally, I will consider the specific test for sexual harassment established through the relevant Tribunal jurisprudence.
1. Adverse Differential Treatment in the Course of Employment (s. 7(b) of the CHRA) [45] As I have already stated, the Tribunal’s analysis of a complaint arising from s. 7 of the Act was set out in Moore. Each of the Moore factors are considered below, but, on the basis of the parties’ submissions, the main questions before the Tribunal are (1) whether the conduct alleged by Ms. Young was established, on a balance of probabilities, and (2) whether it is more likely than not that Ms. Young’s sex was a factor in Mr. Sawchuk’s conduct towards her.
[46] Throughout the hearing and in its closing submissions, VIA repeatedly conflated the second and third elements of the Moore analysis (adverse treatment and a connection to a protected characteristic). For example, VIA states:
The Respondent submits that although certain incidents described in the allegations could constitute workplace harassment disputes, there is no evidence of any adverse differential treatment or harassment based on sex or gender.
[47] Conflating these two steps of the analysis obscures the central issue in dispute in this Complaint: whether Ms. Young’s sex was a factor in Mr. Sawchuk’s conduct towards her.
[48] To make a proper determination about whether a complaint should be substantiated, each of these steps must be considered in turn.
[49] First, the Tribunal must consider if the Complainant possesses a characteristic that is protected by the Act. Second, the Tribunal must consider whether the Complainant experienced any adverse treatment, which is clear on the evidence presented in this case and which will be laid out in more detail below. And third, assuming the presence of adverse treatment, the Tribunal must consider whether the protected characteristic was a factor in the adverse treatment, recalling that it need not be the sole or even primary cause of the adverse treatment but merely a factor in the adverse treatment.
i. Protected Characteristic [50] There was no dispute before me over the fact that Ms. Young’s sex is female or that sex is a protected characteristic under the Act.
ii. Adverse Treatment [51] Ms. Young’s Complaint alleges more than twenty incidents that she claims constituted harassment on the basis of her sex. In the course of the hearing, some of the events were discussed in detail, others were only mentioned in passing, and still others were not mentioned at all. For the purpose of this analysis, I haven taken my cue from the parties and will focus my reasons on those events or incidents which were emphasized at the hearing and those elements or aspects of the complaint that were most relevant or useful in making this decision (Turner, 2012 FCA 159 (CanLii) at para 40, Constantinescu v. Correctional Services Canada, 2022 CHRT 13 at para. 33).
[52] Based on the evidence presented at the hearing, and informed by VIA’s own definition of harassment as “any unwelcome action which humiliates, offends or intimidates” as is laid out in the VIA harassment policy which was made an exhibit in these proceedings, I have considered eleven of the specific incidents alleged by Ms. Young and the Commission to constitute discriminatory conduct as well as the totality of the interactions between Ms. Young and Mr. Sawchuk about which the Tribunal heard evidence.
[53] There was no serious attempt to suggest that Mr. Sawchuk’s conduct was not adverse to Ms. Young. In fact, in addition to VIA’s own findings that Mr. Sawchuk’s conduct constituted a breach of the Code of Conduct warranting significant discipline, witnesses, including VIA’s own witnesses, called Mr. Sawchuk’s conduct “boorish”, “unprofessional”, “vulgar” and “difficult.”
[54] Despite the fact that the adverse nature of Mr. Sawchuk’s treatment of Ms. Young was all-but conceded by VIA at the hearing and was substantiated by VIA’s own internal workplace investigation, I will consider and make findings with respect to many of the specific allegations raised in the Complaint, as the details of those incidents are material to the discussion of the final step of the Moore test: the nexus or connection between the conduct and Ms. Young’s sex or identity as a woman, which was contested by VIA.
(1) Individual Incidents Alleged in the Course of Mr. Sawchuk’s Conduct
Surveillance and Photographing (January 2012)
[55] Ms. Young testified that the first incident detailed in her Complaint took place in January 2012. Mr. Sawchuk, she said, was watching her from inside his vehicle while Ms. Young and her partner, Mr. Kanelopoulos, worked at the fuel stand. Ms. Young also testified that Mr. Sawchuk was taking photos of her while she worked that his overall conduct was “creepy” and that it made her uncomfortable.
[56] Mr. Kanelopoulos also testified before the Tribunal and corroborated Ms. Young’s testimony, though both witnesses conceded that they were quite far from Mr. Sawchuk at the time.
[57] Mr. Sawchuk testified before the Tribunal and admitted that he was at the location at the time of this alleged incident, but he denied taking any photos of Ms. Young. In response to questions from the Tribunal, Mr. Sawchuk testified that he has no recollection of what he was doing at the time of the incident. Mr. Sawchuk went on to testify that, upon being confronted about taking photos of Ms. Young by the shift supervisor, Mr. Gilbert Hamilton, he offered to allow VIA to review his phone, presumably to check for evidence of the photos. Mr. Hamilton declined to inspect Mr. Sawchuk’s phone or otherwise determine whether any photos had been taken on the night in question.
[58] The Tribunal heard evidence from multiple witnesses, including Mr. Sawchuk himself, about Mr. Sawchuk’s practice of observing the work performed by his colleagues during their shift and letting them or management know when he found their work to be lacking in some way.
[59] On the basis of the evidence before me, I find that Mr. Sawchuk was present at the fuel stand and was watching Ms. Young while she and Mr. Kanelopoulos performed their duties. I further find that this type of workplace surveillance by a peer or colleague with no supervisory responsibility over Ms. Young was unwelcome conduct that could humiliate, offend or intimidate.
[60] I am unable to make a finding, based on the evidence before me, that Mr. Sawchuk was taking pictures of Ms. Young, though I believe that Ms. Young believes this to be the case. This is not to say that I have concluded that Mr. Sawchuk did not take the photos. Rather, given how far away Ms. Young and Mr. Kanelopoulos were from Mr. Sawchuk, and in light of Mr. Sawchuk’s testimony and Mr. Hamilton’s failure to inspect Mr. Sawchuk’s phone, I find that I am unable to make a factual finding either way about whether Mr. Sawchuk was taking pictures of Ms. Young on the night in question.
[61] A single incident of watching colleagues while they work, though perhaps unpleasant, unwelcome or (to use Ms. Young’s term) “creepy”, is unlikely to be sufficient to ground a harassment complaint. However, I find that, taken in conjunction with other adverse or unwanted treatment, this conduct is adverse within the meaning of the Act.
Swearing (January 2012)
[62] Ms. Young testified that a week following the incident at the fuel stand, described above, she and Mr. Sawchuk had a disagreement about whether Mr. Sawchuk could ride along in the cab while she conducted a train movement. Mr. Sawchuk was, as was sometimes the practice in the train yard, getting a ride from one part of the yard to another on the vehicle that Ms. Young was assigned to move in the course of her duties.
[63] There is no dispute that Ms. Young was within her rights under the safety rules to ask Mr. Sawchuk to move out of the cab while she was conducting the train movement—a fact that Mr. Sawchuk would have known based on his detailed knowledge and understanding of the safety rules applicable to the work of a locomotive attendant.
[64] However, instead of acting in a respectful and collegial manner when asked by Ms. Young to leave the cab, the evidence before me was that Mr. Sawchuk responded with an outburst of frustration including the use of swear words.
[65] At the hearing before the Tribunal, VIA argued that Mr. Sawchuk was not swearing at Ms. Young but merely in response to Ms. Young’s request that he leave her work environment while she was conducting the train movement. I do not find this distinction to be a meaningful one in the circumstances, and neither did VIA manager, Mr. Hamilton, who reprimanded Mr. Sawchuk for conduct that he found unacceptable.
[66] Although no witness was able to recall the words that Mr. Sawchuk used, I am satisfied that this incident constitutes intimidating behaviour by Mr. Sawchuk and find that it constitutes adverse treatment in the meaning of the Act.
[67] Following this incident, Ms. Young first reported Mr. Sawchuk’s conduct to management. Mr. Hamilton asked Ms. Young to put her complaint in writing, which she did on January 2, 2012. Ms. Young alleged that Mr. Sawchuk had watched and photographed her at the fuel stand a week prior and had refused to leave the cab upon her request the day prior while she was conducting a train movement. Ms. Young advised VIA that Mr. Sawchuk raised his voice and swore at her.
[68] I also note, as I will discuss in more detail in my analysis of VIA’s liability for Mr. Sawchuk’s workplace conduct, that this heightened response by Mr. Sawchuk to Ms. Young’s request was brought to the attention of management. This kind of aggressive and unprofessional conduct on the part of an employee who is well aware of the rules and expectations of his job ought to have raised concerns for VIA about an underlying problem that warranted further monitoring, if not further investigation.
[69] However, when the matter (along with the alleged monitoring and photographing of Ms. Young at the fuel stand) was raised with Mr. Hamilton, he did not conduct a thorough investigation, he did not take any steps to actually determine whether or not photos had indeed been taken of Ms. Young (beyond relying on Mr. Sawchuk’s denial) and it does not appear that VIA took any steps to investigate why Mr. Sawchuk responded in such an aggressive manner to his colleague’s request that he leave the cab while she was conducting the train movement.
[70] While VIA’s closing submissions state that Mr. Hamilton “investigated the matter and brought it to resolution,” the events that followed suggest that the matter was far from adequately resolved.
Dangerous driving
[71] Ms. Young alleged that, in February 2012, shortly after Mr. Hamilton purported to resolve her initial complaint, Mr. Sawchuk drove a company vehicle in a reckless manner towards her in the train yard and proceeded to interfere with her effort to obtain supplies from the storage shed.
[72] Ms. Young also complained about a second incident of dangerous driving that she alleged had taken place in September 2013. This second incident was the subject of testimony from several witnesses and was identified by Ms. Young as a significant source of concern for her own safety.
[73] Ms. Young testified that around September 18, 2013, Mr. Sawchuk drove the company vehicle in a reckless manner at a level crossing where she was conducting a train movement. Ms. Young had a very distinct recollection of the events of that day and testified that her level of concern about safety was particularly heightened because of an incident that had occurred at a level crossing near Ottawa where a train had collided with a public transit vehicle, killing six people. Ms. Young noted that the stress level in the TMC yard that night was high, and she believed that Mr. Sawchuk was attempting to intimidate her while she performed the train movements that she had been assigned.
[74] Ms. Young’s testimony about the September 2013 incident was corroborated by Mr. Kanelopoulos, who told the Tribunal that Mr. Sawchuk drove the company vehicle recklessly at the crossing, resulting in Mr. Kanelopoulos having to “dump the brakes” or stop suddenly. Mr. Kanelopoulos testified that he reported the incident to Mr. Hamilton.
[75] Mr. Sawchuk also testified about this event and denied that he drove at the crossing in a manner designed to intimidate Ms. Young. He corroborated the near miss incident but stated that he did not see the train as there were no lights at the back of the train and that he was not intending to intimidate Ms. Young.
[76] The Tribunal heard from many witnesses during the course of the hearing, and the observation that Mr. Sawchuk was fixated on what he perceived to be safety concerns and the Rules were consistently noted in the evidence. Mr. Sawchuk was repeatedly characterized as a “control freak” who was obsessed with safety and the Rules.
[77] Based on the totality of the evidence about Mr. Sawchuk’s experience on the night shift, his vigilant conduct in the yard and his self-described fixation with safety, coupled with the