FAQ's Cases - Stewart McKelvey

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Jerry while the respondent responds to the applicant’s allegations of discrimination andharassment, a decision that was clearly made in September not August.[95] In summary, I do not find that Mr. Castellano harassed the applicant during theirmeeting on May 22 given, most importantly, that I find Mr. Castellano’s generaldescription of what occurred to be credible and the evidence the applicant states helpscorroborate his account, namely that he told a number of persons of this harassmentdoes not support his version of what happened. I make the further finding that there isno persuasive evidence that the respondent discriminated against the applicant on thebasis of his age.2012 HRTO 1455 (CanLII)[96] I would note here that the applicant’s complaint to the respondent in Septemberwas that he had been harassed and discriminated against by Mr. Castellano. Therewas some ambiguity as to what discrimination the applicant was referring to, whether hewas alleging only that Mr. Castellano’s harassing comments on May 22 werediscriminatory or whether he was making a broader complaint, that Mr. Castellano’sactions during April and May constituted discrimination in addition to the harassingcomments Mr. Castellano made on May 22. I have, for the purposes of this section ofmy Decision, considered only the issue of the alleged May 22 comments and whetherthey were discriminatory. I have already determined that there was a failure toaccommodate the applicant in April and May that constitutes discrimination. I furthernote that when the respondent investigated the applicant’s complaint of harassment anddiscrimination after September 21 it considered both the Mr. Castellano’s comments onMay 22 and the respondent’s actions in general.4) Did the respondent meet its duty to investigate the applicant’s complaint ofharassment and discrimination under the Code?[97] The Tribunal has held that a respondent has a duty to investigate complaints ofdiscrimination or harassment; that the duty to investigate is the means by which anemployer ensures that it is achieving the Code mandated responsibility of operating adiscrimination free environment (see Laskowski, para 53). A failure to take reasonable30
steps to address allegations of discrimination may result in an employer being heldliable for violating the Code (see Moffatt v. Kinark Child and Family Services, [1998]O.H.R.B.I.D. No. 19, para 234).[98] The Tribunal’s decision in Laskowska v. Marineland of Canada Inc, 2005 HRTO30 (Laskowska), sets out the following three criteria to assess the reasonableness andadequacy of a respondent’s response to an allegation of harassment:(1) Awareness of issues of discrimination/harassment, Policy, ComplaintMechanism and Training: Was there an awareness of issues ofdiscrimination and harassment in the workplace at the time of theincident? Was there a suitable anti-discrimination/harassment policy?Was there a proper complaint mechanism in place? Was adequatetraining given to management and employees;2012 HRTO 1455 (CanLII)(2) Post-Complaint: Seriousness, Promptness, Taking Care of itsEmployee, Investigation and Action: Once an internal complaint wasmade, did the employer treat it seriously? Did it deal with the matterpromptly and sensitively? Did it reasonably investigate and act; and(3) Resolution of the Complaint (including providing the Complainant witha Healthy Work Environment) and Communication: Did the employerprovide a reasonable resolution in the circumstances? If the complainantchose to return to work, could the employer provide her/him with ahealthy, discrimination-free work environment? Did it communicate itsfindings and actions to the complainant? (para. 59)The Tribunal in Laskowska goes on to state that :While the above three elements are of a general nature, their applicationmust retain some flexibility to take into account the unique facts of eachcase. The standard is one of reasonableness, not correctness orperfection. There may have been several options – all reasonable – opento the employer. The employer need not satisfy each element in everycase in order to be judged to have acted reasonably, although that wouldbe the exception rather than the norm. One must look at each elementindividually and then in the aggregate before passing judgment onwhether the employer acted reasonably. (para. 60)31
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The Labour Relations BoardSaskatche
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3unionized workforce at their plant
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5[15] In addition, there was some h
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7Employee “D”: He was on his pr
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9[37] The Board did not have the be
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11[48] Shortly after Mr. Copeland b
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13credible reason for the disciplin
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15outlined by the Board in RWDSU v.
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173. Order for captive audience mee
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19for his failure to produce the wi
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21[95] Similarly as noted in the qu
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23[103] Also, in The Newspaper Guil
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25rights under the Act. The Employe
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27The determination of whether, in
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29respect to the section of the Alb
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31meetings, would have been within
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33[143] In respect of the complaint
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- 2 -[2] The plaintiff, Susan Chart
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- 4 -by the time she finished there
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- 6 -[24] Testimony was received fr
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- 8 -would feel grateful for the fo
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- 10 -[49] 2. Comfortable, even tem
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- 12 -[67] Another complaint was th
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- 14 -bottom of the problem and the
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- 16 -member about something amusin
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- 18 -[111] Given that the meeting
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- 20 -[130] Some of the plaintiff
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- 22 -[146] The plaintiff’s expla
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COURT OF APPEAL FOR ONTARIOBETWEENC
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Page: 3[5] In his application, the
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Page: 5(c) By the Employer at any t
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Page: 7continuation, in the amount
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Page: 9D. ANALYSIS[23] It is well-s
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Page: 11[28] The appellant submits
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Page: 14[37] When parties contract
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Page: 16addressing the issue of a c
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Page: 18application of mitigation:
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Page: 202008 ONCA 479, 91 O.R. (3d)
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Page: 22[56] Notably, the concern e
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Page: 24termination without cause,
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Page: 26[64] The costs on the appli
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The parties agree this Board has th
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Mr. Wallace. The evidence is that M
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Mr. Mutter and Mr. Wallace each tes
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Mutter spoke. He testified he was a
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saw (or was told by the crew) Mr. K
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and heard, as well as other factors
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When viewed in that light, it is fa
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IN THE SUPREME COURT OF BRITISH COL
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Balogun v. Deloitte & Touche, LLP P
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Page 2of the immediate problem that
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Page 4- He admitted that he had pla
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Page 125 and 126: Page 1483 83. McKinley is an import
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Page 131 and 132: [1] This is an Application under se
Page 133 and 134: [10] Sean McKay also testified on b
Page 135 and 136: THE LAW[19] Section 5 of the Code p
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Page 141 and 142: [1] The applicant has filed two App
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Page 147 and 148: do what they can and that if someon
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Page 159 and 160: [66] I recognize that some of the c
Page 161 and 162: was made aware on May 22/07 that hi
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Page 165 and 166: is older, or believed that the appl
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Page 173 and 174: [109] The respondent submits that i
Page 175 and 176: that the events of May 22 may have
Page 177: Accordingly, I am requiring the par
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FAQ's Cases - Stewart McKelvey

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