The action and laws associated with harassment in Canada have an extensive past from originally being non-existent to now being very, very detailed and specific. And this is just at the national level. Provincial governments within Canada can add additional requirements and details to both criminal laws and civil ones, and some have down to even the student level with underage minors. So it’s a fair statement to say that the Canadian government in it’s entirely has taken harassment seriously and continues to do so. But what constitutes harassment in Canada? Can anyone be accused of the crime or charge? What if one is innocent, is their career and school placement lost based on a complaint alone? And how to victim actually receive protection and is it timely? These questions are buried in the details of Canada’s harassment laws and response to the social problem that harassment represents.
For Canadian policy, harassment is the inappropriate behavior by a person that is targeted at another and offensive to that person and it occurs in the workplace. The workplace can include the actual work location, or a place that is related to work, like an offsite meeting. The action taken has to be the type that is known or would be reasonably known to the perpetrator as harmful or offensive to the victim. The action can involve verbal or visual displays that are intended to insult, demean, embarrass or humiliate the victim or cause fear through intimidation or threat. The definition also includes any kind of harmful behavior based on protected class status such as race, religion, gender, marital status and more. The frequency of harassment can be a pattern or series of actions over time, or it can be one very, very serious instance on a victim.
One of the key elements of harassment is that it often needs to be repetitive and ongoing in nature. Following a person around day after day enough to be seen so the person feels followed would constitute as potential harassment. Following a person once to the library is not going to meet the threshold, even if it may seem irritating or cause concern. However, if the person follows the victim and then runs up and yells obscenities and make it seem like or she will cause harm, especially for a reason based on a protected class, then that one instance could easily be argued to be significant, one-time harassment. With these examples then it’s clear that harassment cases have to be taken one at time versus just dumped in a default category with a default response.
The office place can be even more confusing and hard to apply a harassment at work definition to. A manager giving firm direction to a worker repeatedly because the person doesn’t produce desired results is in most cases not harassment. However, a manager implying that poor performance can be excused if the victim agrees to physical contact and the message is implied by holding the victim’s shoulders while sitting is definitely harassment, if not sexual harassment. Clear extreme situations are often the easier ones to deal with. But there’s a lot of gray area in between. What happens, for example, where two workers get along romantically for months and then suddenly one day things go bad, but they still work in the same area and one keeps trying to talk it out with the other during breaks or in the hallway? Is that harassment? Or is it the results of an ending relationship? In many cases, companies try to avoid the question altogether by banning interoffice relationships as a proactive harassment policy, but in practice these rules are hard to enforce and may even violated protected classes. So the situation remains muddy.
Criteria for Case Thresholds
In Canadian life and in the case of workplace harassment, many agree that a certain threshold has to be met for a harassment case to be valid and pursuable. These criteria for a minimum case include:
- The act involved is inappropriate, offensive in nature as conduct, and includes objectional actions that may be verbal, displays, or involve actions of intimidating someone or causing fear in them. The act could also be a verbal statement or display that is related to discrimination towards a protected class.
- The person who made the complaint of harassment was a target of that harassment by the perpetrator.
- The person making the complaint was harmed, insulted, embarrassed, belittled, intimidated or fearful as a result of the action.
- The perpetrator knew or should have known that the action would be offensive or cause harm to a targeted victim.
- The harassment action occurred in the workplace or in a work-related location, including being on travel.
- The harassment occurred over a series of instances and incidents which had a long-term impression on the victim.
- With sexual harassment there is a power imbalance in the relationship between the perpetrator and victim and the perpetrator has the ability to influence the status or work condition of the victim.
For a strong case, every one of the above criteria need to be present and there needs to be enough documentation to reasonable prove the factor occurred or exists. Where some of the elements can’t be reasonably supported, then the case will likely be deemed weak. A company or even a lawyer will wait to see if more incidents occur which can then make the case far stronger, especially in showing a pervasive pattern of harassment behavior that is ongoing and documented.
The legal world is an odd place, even in Canada. While there are plenty of laws on the books to stop crime as well as to provide civil recoveries for harms that are damaging but not criminal per se, each one has a time limit or clock ticking on it for that action. Harassment is no different, and harassment case victims have only so long to pursue their issue before it becomes impossible to enforce. Often referred to as a statute of limitations in the legal world, these time limits have real, practical impacts on harassment situations.
In Canada, a harassment complaint needs to be documented and submitted within 12 months or one year from when the latest incident of the harassment occurred to the victim. So, if a victim had been harassed for a year and half, and then files a complaint 13 months after the last incident occurred, the complaint won’t be valid, even if the harassment trend did in fact occur. The victim literally has to wait for the next incident to occur before a complaint can be made again.
The time limit above doesn’t restrict how far back a complaint can go, but the last instance has to be within the time period allowed. This means a victim can include instances going back years before to bolster the argument of a harassment pattern. This is often the case in the majority of harassment cases that can span years of interactions.
Where Harassment Did Not Occur, But Can Seem Confusing
The ongoing challenge with harassment is that the situation in gray cases often depends on whether a victim feels harassed or not. For example, locker room behavior for one employee may seem acceptable and part of being one of the group. The same situation for another worker may seem extremely offensive and constitute harassment. Nothing is different between the two situations except how each worker perceives the environment. As a result, many decision-makers on complaints try to balance them against reasonable person standards, i.e. would a reasonable person find the behavior offensive in the majority of cases? If yes, then harassment is likely to have occurred so it should be dealt with. But even this is unclear, and companies have been sued regardless for making the wrong decision as far as the victim was concerned.
Scenarios that are likely not harassment and more often than not are differences of opinion include the following:
- A normal direction from or exercise of management by a supervisor within his or her scope and daily duties directing staff to perform work expected.
- An argument, difference of opinion, or even a heated discussion in and of itself is not harassment. A pervasive interruption pattern and belittling a person, especially with a power imbalance, could be harassment.
- A worker feeling stress is not harassment per se, but a pattern of chronic stress when dealing with a specific person could be a symptom of harassment.
- Organizational change that creates changes in assignment, the workplace, the nature of work and similar is not harassment when systemic and not individualized without justification.
- A single inappropriate remark is generally not harassment.
- A social or personal relationship mutually wanted by both persons is not harassment.
- Friendly gestures like shaking hands or a singular pat on the back is not harassment per se, but this area is very gray, and many can believe it is a form of harassment when there is a power imbalance between the two people.
In many cases, the situation has to be investigated in detail to determine what actually occurred. It’s often the case that immediate stories change when people are put under controlled questioning. Where harassment did occur, the evidence often comes from the perpetrator’s own words instead of third party witnesses who tend to change details as their memories get older.
Harassment can happen socially, in school, or in the workplace. It is not limited to just one type of environment, but it’s often associated with the workplace since this is where most of the complaints originate from. Canada generally provides civil remedies for harassment, but these are not automatic protections. A person has to pursue a complaint, seek institutional help where available, and then file a court case to get recovery. Criminal harassment has a stronger response, but it often takes a higher threshold to carry a charge in court. The action often needs to cross the limit of becoming stalking and outright criminal assault. The one exception is where the harassment involves causing fear, offense or intimidation on the basis of someone being part of a protected class, which triggers very serious and immediate penalties when a prima facie case is determined.