[1]               This complaint captures the heart of the #MeToo movement for the complainant [Employee]. The Employee started a new job at a BC University [University]. She worked in a professional capacity and closely with the individual respondent [Faculty Member]. They had a great working relationship. The main incident in this complaint took place during a business trip after a successful day of work. After dinner, while walking down the street, the Faculty Member told the Employee that he was crazy about her. She says this comment – and other behaviour around that time – was sexual harassment and, even if not, discrimination on the basis of sex. She says that the University is liable for that sexual harassment, and for discrimination in how it responded to her allegations. She says that the University and the Faculty Member discriminated against her in her employment on the basis of her sex contrary to s. 13 of the Human Rights Code [Code].

[2]               The Faculty Member and the University deny discriminating. They deny that the Faculty Member’s comment – which he acknowledges making and apologized repeatedly for – or his other conduct was sexual harassment or discrimination on the basis of sex. They say that the University’s response was exemplary. They seek a full dismissal of this complaint.

[3]               The Employee wants to hold the Faculty Member and the University accountable for what she genuinely experienced as discrimination. The Employee wants the Faculty Member to admit that he sexually harassed her, and this is the legal conclusion that she now seeks from the Tribunal. She believes that the University condoned and defended the Faculty Member’s bad behaviour because he was a man in a position of power. She wants the University to be accountable for her experience of sexualized violence in the workplace. She wants to have her complaint known.

[4]               For the reasons that follow, I find the complaint is not justified. The complaint is dismissed in its entirety under s. 37(1) of the Code.

[5]               This decision was released to the parties on November 28, 2019. The parties were then given an opportunity to make submissions in relation to an application for which leave had been granted on January 18, 2019. The Faculty Member applies for an order sealing the complaint file and banning publication of this decision, and in the alternative, sealing the complaint file and limiting publication of information that could identify individuals involved in the events giving rise to this complaint [application].

[6]               The University takes no position on this application. The Employee objects to this application. The Employee wants this decision published in its entirety. She says that any orders limiting publication promote secrecy which stigmatizes her, violates her freedom of expression, and contributes to the harm sexual misconduct creates.

[7]               I have considered all submissions filed by the parties in relation to this application, but only refer to those necessary to come to my decision.

[8]               Before turning to the application, the Employee raises new issues in her response submission that merit comment. As I understand her submission, the Employee takes issue with the process through which her complaint has been adjudicated. To the extent that the Employee raises allegations of bias against two other female adjudicators who issued preliminary decisions in her favour, including in The Employee v. The University and another 2018 BCHRT 290, that allegation is not properly before me. To the extent that the Employee takes issue with the merits of this decision, those arguments are properly the subject of judicial review. To the extent that the Employee raises a bias allegation against me, I address it below.

[9]               As noted by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45 [Wewaykum] at paras. 47-48, an allegation of bias is serious. Given that seriousness and the strength of the presumption of impartiality, the evidence to show an apprehension of bias must be substantial: Wewaykum at para. 76. The principles concerning reasonable apprehension of bias are set out by the Court of Appeal in Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350, at para. 7, and will not be repeated here. The law requires cogent evidence of bias beyond disagreement with the findings of a decision-maker: Adams v. B.C. (W.C.B.), [1989] B.C.J. No. 2478 at para. 13; Shawnigan Residents Association v. British Columbia, 2017 BCSC 107 at para. 193.

[10]           As I understand her submission, the Employee says that my decision to hold a public hearing subject to an anonymization order and publication ban favours the interests of men in positions of power by maintaining secrecy with respect to their identity. She says that “a significant component of the current general conversation about legal proceedings in relation to allegations of sexual misconduct, including sexual harassment, is that such proceedings too often operate to protect the men, and particularly powerful men, against whom these complaints are made”.

[11]           The Employee’s assertion of bias, on its own, is not enough to displace the presumption of impartiality: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para. 20; Stein v British Columbia (Human Rights Tribunal), 2017 BCSC 1268 at para. 155, upheld in 2018 BCCA 264. The fact that I have found her complaint not justified, and did not accept some of her arguments, is not evidence that “an informed person, viewing the matter realistically and practically – and having thought the matter through” would conclude that “it is more likely than not that [I], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394; Stein at para. 164. Ultimately, the Employee disagrees with my decision on the merits of her complaint. Her recourse is in judicial review. I now turn to the application.

[12]           I begin with the presumption that proceedings before this Tribunal are fully open to the public: Mother A obo Child B v School District C, 2015 BCHRT 64 [Mother] at para. 7; Rules of Practice and Procedure, Rule 5(1); Administrative Tribunals Act, s. 50(4). This openness serves important public interests that engage constitutional values that are not easily overridden: JY v. Various Waxing Salons, 2019 BCHRT 106 [Waxing Salons], paras. 24 to 30.

[13]           Although the open court principle is not absolute, the burden on a party seeking to limit publication is a “heavy one”: Bao v. Simon Fraser University, 2014 BCHRT 167 [Bao], para. 48. In this type of application, the Tribunal balances the public interest in a fully open justice system, and the privacy rights of parties who bring sensitive matters before the Tribunal for resolution: A and B v. Famous Players Films and C, 2005 BCHRT 432 [Famous Players]. The burden is on the person seeking to limit publication to establish a strong and compelling basis to deviate from a fully open process: Famous Players, para. 8.

[14]           I deny the Faculty Member’s request for an order sealing the complaint file and banning publication of this decision. I am not persuaded that such a broad order is necessary to address the privacy interests that arise in this complaint. This complaint concerns allegations of sexual harassment and the #MeToo movement, a matter of widespread public interest. As stated by the Tribunal in Mother, “where privacy is at issue and demands protection, openness of the justice system requires that the public still should have access to sufficient relevant facts of the case and the reasons for the decision in order to understand how the decision was reached”: para. 13. In my view, not publishing this decision would hinder public access to important information about the complaint in a manner that is not justified by any overriding privacy concern. A more balanced approach is necessary.

[15]           When the protected rights of two individuals come into conflict, as is the case here, a careful balancing of constitutional values and interests is required. The constitutional values engaged in this application are freedom of expression under s. 2(b) of the Charter and the value our society places on privacy, which the Supreme Court of Canada has addressed under both s. 7 and 8 of the Charter: Mother, paras. 3 to 5. The Tribunal balances these competing values and interests in a way “that can best ensure the just and efficient resolution of complaint and, in doing so, further the purposes of the Code”: Waxing Salons, para. 30. In exercising its discretion to limit publication, the Tribunal considers a non-exhaustive list of factors: the stage of the proceedings, the nature of the allegations, the private details in the complaint, the harm to reputation, and other potential harm: Waxing Salons, para. 30. I address each in turn.

[16]           Although there is greater scope for limiting public access to information at the preliminary stages of a complaint because the allegations are not yet proven, the balancing of interests did not change after an evidentiary hearing because I have found the complaint not justified: Famous Players, para. 11. This factor weighs in favour of anonymization.

[17]           Regarding the nature of the allegations, this case involves allegations of sexual harassment and impropriety against a faculty member in a public university in this province. Allegations against a public university engage greater public interest because the public has a right to know what allegations, substantiated or not, are being made: Bao, para. 53. However, the nature of these allegations also engages prurient interest. The Employee alleges that the Faculty Member is a sexual predator and was grooming her into a sexual relationship. Although the subject matter of this complaint is not purely a private dispute between the parties, and engages the public’s interest in the operation of a large public institution, the nature of these allegations is more likely to attract the public’s “prurient” attention: CN v. Health Authority and Another, 2014 BCHRT 265 [CN], paras. 49 and 51; Waxing Salons, para. 30. In my view, the balance weighs in favour of anonymization.

[18]           The private details in the complaint are, in my view, a neutral factor. This complaint does not concern aspects of a person’s identity that they choose to keep private, such as mental illness: XP v. JR v. The Hospital and others, 2018 BCHRT 4, paras. 5-7; upheld in 2018 BCSC 2079. The private medical and counselling information admitted as evidence in this hearing belongs to the Employee who opposes limiting publication.

[19]           Notwithstanding the Employee’s objections, there is no dispute that the Tribunal will “consider the nature of a person’s profession and the allegations to determine whether the potential harm to reputation will justify an order restricting publication”: Waxing Salons, para. 30. The Faculty Member says that he is likely to face immediate and irreparable loss of reputation due to public speculation about the circumstances giving rise to the complaint notwithstanding that the complaint has been found not to be justified.

[20]           I do not accept the Employee’s argument that the Faculty Member has made a “mere assertion” with no “convincing evidentiary basis” that his reputation may be irreparably damaged by public disclosure of this complaint. The Faculty Member attests that “any rumours that I had engaged in sexual predation, if renewed outside the context of the Tribunal’s process, would be very difficult to answer and dispel”. He attests that, if the complaint became a matter of public commentary, it is likely that he would be unable to perform his duties and have to permanently leave the University. He attests that this was expressly contemplated with senior university officials at the outset of this process.

[21]           Although one should expect a university community, and the broader public for that matter, to understand the difference between unsubstantiated allegations and established facts, this may not be the case for allegations that engage prurient interest. I distinguish Bao on the prurient nature of the allegations that are at issue in this complaint. I am persuaded that the damage to the Faculty Member’s reputation for being called a sexual predator may be similar to the damage that would have been caused by a finding that he had committed sexual harassment. This harm goes beyond the “personal distress, embarrassment and professional difficulty” that was contemplated in Cotter v. Point Grey Gold and Country Club, 2017 BCSC 1907, para. 18. This factor weighs in favour of anonymization.

[22]           Regarding other potential harm, if the end result of this process is that the Faculty Member’s reputation is damaged beyond repair, despite a finding that he did not commit sexual harassment, then this undermines the purposes of the Code. Where a person faces further victimization or hardship as a result of public disclosure, that weighs in favour of a restriction: Employee v. Life Labs (No. 2), 2018 BCHRT 202, para. 12. The chilling effect of such a loss of privacy might well outweigh the public interest in unlimited access to the Tribunal’s proceedings: Kennedy v. Strata Corporation KAS 1310, 2005 BCHRT 87, at paras. 58-59.

[23]           On balance, I am satisfied that the privacy interests of the Faculty Member continue to outweigh the public interest in knowing his identity, such that the orders to maintain his privacy are warranted. Although the Employee is focussed on her constitutional right to freedom of expression, the interests advanced by both parties engage a constitutional dimension. In exercising its discretion, the Tribunal is cognizant that once a person’s privacy is invaded, “it can seldom be regained”: R v. O’Connor, [1995] 4 SCR 41 at para. 119.

[24]           In my view, the Faculty Member has met the burden of establishing a strong and compelling basis for anonymization of his name, and by necessary extension, the names of parties and witnesses. I distinguish RR v. Vancouver Aboriginal Child and Family Services Society (No. 3), 2019 BCHRT 269, where the anonymization order was not extended to witnesses, on the grounds that it was a preliminary decision issued before the tribunal knew who the parties intended to call as witnesses and the subject matter of their proposed testimony. There is no evidence that this complaint has become a matter of public record or comment.

[25]           As it relates to the second part of this application, I grant the Faculty Member’s request for an anonymization order, but I do not accept the proposed redactions appended to the application. I have only removed details of jobs and duties in my reasons for judgment that may reasonably lead to the identification of the individuals involved. I do not accept the redactions proposed by the Faculty Member because they go too far. In my view, the public’s interest in the important issues raised in this complaint can be addressed in this decision without identifying the individual’s involved: Famous Players, at para. 14. Replacing names, and identifying information, with generic positions in my reasons for judgment minimally impairs the openness of judicial proceedings because such an order relates only to a “sliver of information”: C.S. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 [WCAT] at para. 37. The material facts underlying this complaint, and the reasoning about how the Code applies in the circumstances, will remain public to the greatest extent possible.

[26]           The analysis does not end here. For this anonymization order to be effective, it may be necessary to order a publication ban. The Employee says that, without forbidding her from describing her own life history, it is not possible for the Tribunal to provide the Faculty Member with effective anonymity. At issue, then, is whether a publication ban is also warranted.

[27]           The Employee argues that a publication ban runs contrary to the Code. She describes orders limiting publication as “extraordinary orders” that “shield” the Faculty Member from the consequences of his own actions as found by the Tribunal, and in fact, as admitted by him. She says that people are restrained in their comments about events in their lives by the “obligation of truth”. She says that, since the facts are largely not in dispute, any constraint of truth on her discussing her experiences at the University would amount to a penalty or disadvantage imposed on her because she filed a human rights complaint contrary to s. 43 of the Code. She says that it would not be consistent with the purposes of the Code to limit her ability to truthfully describe her experiences at the University. She says that control of her own history, and the right to truthfully describe that history, is a fundamental component of personal liberty and freedom of expression. She says that a publication ban would stop her in important ways from participating in the social and political life of this province contrary to s. 3 of the Code.

[28]           I do not accept the Employee’s characterization of the circumstances that she now finds herself in. A public hearing has been held where all parties were under an “obligation of truth”. The Employee has testified under oath, and at length, about her experiences at the University. Her evidence is that the Faculty Member is a sexual predator who has been grooming her into a sexual relationship. That evidence was ultimately not accepted by this Tribunal, and her complaint was found not justified. Although the parties do not dispute many of the facts, they disagree about how these facts are to be interpreted and the legal consequences that may flow from them. These disagreements continue even after the reasons for judgement have been issued. A publication ban does not contravene the Code in these circumstances.

[29]           The Employee argues that there should be no limits on publication because the Respondents made a with prejudice settlement offer, without a condition requiring confidentiality, prior to the start of the hearing. However, this is not a factor that weighs against limiting publication. There is no dispute that the offer was made in the context of dismissal application on the basis of a reasonable settlement offer under s. 27(1)(d)(ii) of the Code. To succeed on these types of applications, the offer must reflect the types of orders the Tribunal might make if the complaint was successful: Issa v. Loblaw, 2009 BCHRT 264 [Issa]. It is unlikely that the Tribunal would order a publication ban if the Employee was successful in proving her complaint at a hearing. This was expressly contemplated in the decision that granted the Faculty Member leave to make this application. The Faculty Member was granted leave to make this application only in the event that he was successful at a hearing. In this case, the Employee did not accept the offer, the offer expired, the hearing proceeded, and the outcome was not in her favour. She cannot now rely on the terms of a settlement offer that contemplated Issa where no breach of the Code was ultimately found.

[30]           The public interest in this case is high, in part, because it involves a large public institution, and in part, because of the nature of these allegations attract the public’s prurient attention. As I understand the submissions, the debate between the parties is now over whether the Faculty Member is a sexual predator who got away with sexual misconduct because he is a man in a position of power. From the Faculty Member’s perspective, the Employee continues to push for him to take public accountability for sexual misconduct based on her narrative that he is a sexual predator. The Faculty Member is concerned that the Employee is seeking to “name and shame” him publicly now that her complaint has been dismissed. He says that it would be a significant injustice if this decision became a vehicle for shaming him and stimulating a retrial of this complaint in the press or on social media. In these circumstances, orders limiting publication are necessary to maintain the integrity of these proceedings.

[31]           There is a strong interest in public accountability of the Tribunal. That strong public interest is preserved by this anonymization order and publication ban. The balancing of competing interests and values in this case does not “create a cloud of secrecy under which justice will wither”: WCAT, para. 49. This decision has been published so that the reasoning can be considered, tested, criticized, and used to guide future decision-making. That the BC Supreme Court may have a higher threshold on issuing orders limiting publication, including on judicial review, is not determinative: V.F. v. E.B., 2010 BCSC 1870.

[32]           The application for a sealing order is denied.

[33]           The application for an anonymization order is granted. I order that the parties and witnesses shall be referred to as follows:

[34]           I have anonymized only that information in my reasons for judgment that may reasonably lead to the identification of the individuals involved in this complaint. Although this, by necessity, includes details of jobs and duties, the information redacted is not as broad as that proposed by the Faculty Member.

[35]           The application for a publication ban is granted. I order that no person shall publish in any document, or broadcast or transmit in any way any information disclosed in or in relation to this complaint that could identify individuals who were involved in the events giving rise to this complaint.

[36]           On the issue of enforcement, I decline the Faculty Member’s request to make ex parte applications if another party violates an order and this complaint becomes a matter of public comment. The law is unclear for enforcement of publication bans after a complaint process has come to an end. It is not clear what jurisdiction the Tribunal retains after the conclusion of a complaint process. Unlike the courts, the Tribunal does not have inherent jurisdiction. Although s. 37(4) of the Code provides for costs for improper conduct against a party during the course of the complaint, I decline to retain jurisdiction to address any breaches of orders because this is simply not practical. Section 39 of the Code provides for enforcement of a remedy in BC Supreme Court. It may be open to a party to seek relief from the BC Supreme Court. There is some question about whether a party claiming a breach would have a basis for seeking such an order. Since there is no precedent either way, the parties may go to the BC Supreme Court in aid of the Tribunal’s order made to protect the integrity of the Tribunal’s process.

[37]           In reaching these decisions, I have exercised my discretion in the manner that can best ensure the just and efficient resolution of this complaint, the finality of these proceedings, and further the purposes of the Code.

[38]           My findings of fact are derived from the evidence submitted by the parties through 6 witnesses over 13 days of evidence. I extended the hearing to ensure that the parties had a meaningful opportunity to be heard on the issues that I have to decide in this case. This complaint was heard over two months.

[39]           I have reviewed and considered all of the evidence and submissions presented by the parties at this hearing. I have not referred to all of the evidence that I have reviewed. In these reasons, I set out only that evidence required to come to my decision.

[40]           Five witnesses testified in this hearing:

[41]           There was little disagreement between the parties with respect to the material facts in this proceeding. Rather, at issue are how these facts are to be interpreted and the legal consequences that may flow from them.

[42]           My view is that the parties in this case were all doing their best under difficult circumstances. I find that all of the witnesses testified sincerely and credibly within the scope of their knowledge and experience. I did not detect any attempts by any of the witnesses to colour their testimony to suit their cause. Their stories were honest, and largely consistent, even when that meant acknowledging facts that could have been detrimental to their interests: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA), pg. 357.

[43]           At issue is the reliability of their evidence. There were discrepancies in the evidence that I have attributed to witness memories that have faded through the passage of time or hardened as a result of this proceeding. When these discrepancies arose, I have made findings on the ability of a witness to accurately observe, recall, and recount the events in issue.  

[44]           The Employee’s evidence has evolved over time. Her recollection is more detailed now than at the time of the events. What she described feeling in her oral evidence was not always reflected in what she expressed at the time of the events.

[45]           The Faculty Member did not have a clear recollection of the events, and at times, recollected them in a detached way. His recollection was less detailed now than at the time of the events.

[46]           In this case, the most helpful evidence is the documents created at the time of events. These provide the most accurate reflection of what occurred, rather than recollections that has changed with the passage of time. For the most part, I was able to use contemporaneous documents as a reliable yardstick against which to assess the reliability of evidence.

[47]           The Employee was a newly hired employee at the University. She worked in a professional capacity. She had two supervisors. She reported directly to Ms. A at the University and indirectly to the Faculty Member.  

[48]           Ms. A was the hiring manager for the Employee’s position, which was subject to an eight-month probationary period. Ms. A had a primary role during her probation, which  included regular meetings and performance reviews. The Employee was not always available to meet with Ms. A and disagreed with some assessments of her performance. Their relationship was, at times, strained.

[49]           The Employee regarded the Faculty Member as her primary supervisor. He faced a number of significant challenges that year. He relied on her for strategic support. They had a good working relationship. The Employee was central to the success of the Faculty Member’s efforts that year. The Employee excelled in this position and became a trusted advisor to the Faculty Member.

[50]           Ms. A, who had worked in positions like that of the Employee for decades, testified to the travel dynamics and working relationships in contexts such as these. Her description of these interactions is an important contextual factor in this case. The Employee’s position involved frequent meetings and out-of-town travel. Ms. A testified that persons in positions like that of the Employee typically travel out of town with persons performing the role of the Faculty Member, stay at the same hotel, or a cheaper hotel, as the case may be, meet in hotel rooms between meetings, and have meals together. She explained that “some of the best strategic and debriefing sessions” occur during meals. She explained that strategic meetings were held in private places, like hotel rooms, because it was not appropriate to discuss their interlocutors in public areas, such as hotel lobbies, due to the confidential nature of those discussions.

[51]           Ms. A, who had previously worked in other jurisdictions, described an additional challenge for the University. Since the University was located on an island, and most interlocutors were located in Vancouver, it was very typical for persons in positions like that of the Employee to travel off the island with persons performing the role of the Faculty Member. There was an added pressure of travelling on a budget. Rather than fly, it was typical to travel by ferry and book hotel rooms without large suites, as these were the most cost effective options for public institutions. The Faculty Member’s testimony, and a review of his travel itinerary, corroborates Ms. A’s evidence in this regard.

[52]           Ms. A described their work as a team sport that required collegiality. The ease of conversation and collegiality was a skill that was used to cultivate relationships. It was also a skill that was encouraged between different departments at the University. Ms. A testified that it could take years to cultivate such relationships. This was very much a team effort.

[53]           The Employee and the Faculty Member enjoyed working together. They had a great working relationship. The Employee described it as effective and successful and their rapport as positive. The Faculty Member described working extraordinarily well with the Employee.

[54]           The Employee testified that she really enjoyed working with the Faculty Member. It was a positive experience for her. She enjoyed learning and having the opportunity to do work that she believed in, was excited about, and felt very honoured to be part of. She admired the Faculty Member. She trusted him and appreciated his mentoring and positive feedback on her work. She described him as encouraging and wanting her to succeed in her career. She testified that he complemented her on her abilities in her role.

[55]           Both the Employee and the Faculty Member attribute part of the success of their working relationship to the alignment of their values. They genuinely believed in the programs. The Faculty Member found it easy to communicate with the Employee. They had conversations about who they were, what they cared about, and how they came to have those interests. They freely discussed their values and interests in poetry, music, art, nature, spirituality, bike trips, upbringings, past work experiences, and future aspirations. The Faculty Member described just talking after they ran out of work topics.

[56]           In her first performance review, which was conducted two months into her new job, the Employee wrote that she found reassurance in knowing that both of her bosses very much want her to succeed and she trusts their guidance. She wrote that she was very much enjoying her job. She described really loving her job, feeling encouraged, and led down the right path.

[57]           Their alignment of values, and good rapport, made it easier for them to respond to the urgency of several work challenges. The Faculty Member was in a race against time. He needed to rehabilitate one program, rebuild a team in crisis, and ensure that it was sustainable for years to come. The Faculty Member testified that they were “working under very intense time pressure” and the first problem was “very tough”. He described it as a “difficult wrenching problem”. Over time, the Faculty Member confided in the Employee because “she had to know where the mines were in the mine field”. The Faculty Member described his conversations with her as “really useful” because he was able to “unburden” himself about sensitive work matters. The Employee enjoyed being a confidante and strategist. She wanted to have a “stabilizing” and “positive” impact on the programs.

[58]           The Employee did not experience, at the time, any issues of concern with the Faculty Member. They travelled to Vancouver many times for work. She described meeting his wife and daughter in the context of these business trips. She even looked up his daughter on social media to see if they had any mutual friends because she wanted to find a common talking point when she met her.

[59]           The Employee testified to a few occasions that in hindsight felt uncomfortable. She acknowledged that, at the time, “I did not think anything of it”. For example, the Employee described one interaction that “was a weird thing more than anything” when the Faculty Member “asked about a folk song and busted out a tune” at a pub after a day of business meetings in Vancouver. They had stopped at the pub to debrief after the meetings. Although the Employee shared her song writing with the Faculty Member, she did not want to play her song and did not appreciate the number of times he asked her to do so.

[60]           The Employee also reflected on the Faculty Member’s invitations for her to stay at a hotel when on business in Vancouver. She describes him as “insistent” on her staying at a hotel. The Faculty Member does not recall these interactions but denies that he would have insisted. From his perspective, he was simply giving an employee the choice to stay at a hotel, which every employee has the right to do for out-of-town business. His evidence is corroborated by Ms. A who explained that it was normal for persons in positions like that of the Employee to stay in hotels during business trips. In any event, the Employee never stayed in a hotel and always stayed with family when travelling to Vancouver on business. Since she did not have her own hotel room during these business trips, and her family did not reside downtown, the Employee and the Faculty Member would meet in his hotel room in between meetings. She describes feeling uncomfortable meeting in his hotel room, but at the time thought, “maybe he is just so absentminded that he doesn’t understand the optics of this”. There is no dispute in the evidence that the hotel room served as a satellite office during these business trips.

[61]           The incident at the heart of this complaint took place after a successful day of work in Vancouver on March 3, 2016.

[62]           That morning, the Faculty Member and the Employee travelled together on the ferry from Victoria. They arrived to Vancouver for a long day of meetings. They drove directly to their first morning meeting. That meeting went very well. The Faculty Member felt great about the outcome. After that meeting, they drove to the hotel to park the car and drop off their bags. Since the Employee was staying with family, the Faculty Member was the only one with a hotel room. He offered the Employee the choice of leaving her bags in his car or in his hotel room. She chose to leave her bags in his hotel room. Since they were early and his room was not ready, they left their bags at the registration desk. They both understood that their bags would be taken up to his room later that day. The Employee was given a key to his room. They both explained that the purpose of having a key was her to access the room when he attended meetings that did not involve her. Those meetings were scheduled for the following morning. The same arrangement had been made during a previous business trip in December when the Employee worked in his room while the Faculty Member attended meetings that did not involve her.  

[63]           They walked to the next meeting which was scheduled for noon. While walking down the street, the Faculty Member had a phone meeting. The Faculty Member and the Employee reached their destination and were joined by other faculty members. This was a very important meeting. The Faculty Member described it as a significant meeting because this host had a growing and substantial interest in both programs. The Faculty Member described the meeting as “terrific”, “quite remarkable”, and “really positive”. He described an “extraordinarily enthusiastic” reaction to both programs.

[64]           The Employee and the Faculty Member described feeling “elation” at the success of their meetings. The Faculty Member explained that these meetings don’t just happen. There is a huge amount of organization and strategy to be taken to the meeting. The Faculty Member explained that everything – who attends, who speaks, who opens, how it opens, how to build purpose, -- had to be prepared in advance. Documents were also prepared, and a lot of work, went into what information to share. The Faculty Member explained that all of those preparations were done at the very least with the intense involvement of the Employee. The Faculty Member testified that one meeting with that many participants and projects on the line takes months of preparation. That they succeeded with two meetings in one day was, from his perspective, remarkable.

[65]           The Faculty Member and the Employee attended two other meetings that afternoon. Their last meeting ended shortly after 5 pm. They were scheduled to have dinner at 6:30 pm, and in the interim, they returned to the hotel to drop off their papers. The Faculty Member had made reservations at a restaurant where they had eaten before. The Employee wanted to stroll through a park on the way to that restaurant.

[66]           They arrived at the restaurant. By all accounts, it was a great day and they were having a celebratory dinner. The Employee testified that it was “normal to have dinner after such a day”. The restaurant was informal and the waiters were characters. The food was great. The dinner lasted approximately three hours. They shared sparkling wine before dinner, ½ litre of wine with dinner, and finished dinner with liqueur. The Employee testified that she was not drunk. The Faculty Member testified that he was feeling the effects of the alcohol he had consumed. He described the amount of alcohol at the high end of what he tends to consume. He explained that it had been a long day that started very early in the morning. The Faculty Member did not have a comprehensive recollection of their conversation at dinner. The Employee did, and it is for that reason, that I prefer her recollection over his.

[67]           Overall, the Employee enjoyed the dinner and conversation. She reflected on one comment that the Faculty Member made during dinner. She initiated the exchange. She said to the Faculty Member that it had been “such a great day”. She remembers him responding that it had been “especially great because it was with you”. The Faculty Member largely agrees with her recollection, but recalls saying words to the effect, “it was a great day because of you”. The Employee observed the Faculty Member blushing. The Faculty Member acknowledges that his face goes red when he drinks. The Employee testified that she thought at the time that he was flirting with her. In his written response to her complaint to the university, the Faculty Member said instead that it may be that his remark flirted with the line. He acknowledged that he “was moving towards crossing it, and [the Employee] is correct in retrospect to see that happening”. The Employee found this distinction offensive. The Faculty Member genuinely has trouble seeing the exchange from her perspective.

[68]           By his own admission, the Faculty Member had difficulty remembering details of their conversation that evening. The Employee did not. I find that both of them were genuine in their testimony. For these reasons, I prefer the Employee’s recollection of what was said. I find that the Faculty Member said words to the effect, that the day had been “especially great because it was with you”. I accept that the Employee experienced this comment as flirtatious.

[69]           After dinner, they walked back to the hotel so that the Employee could pick up her bag before returning to her family. The main comment at issue in this complaint was made during this walk. They both recall the words, somewhat differently, and both agree that the differences in the words is not that material.

[70]           Following dinner, about half way through the walk home, the Employee testified that the Faculty Member said, “you will have to let me know if this is a misstep but I am crazy about you”. The Faculty Member’s recollection is very similar. He testified saying words to the effect, “this may be a category mistake, and if so, you will have to forgive me, but I am crazy about you”. I find that both witnesses testified sincerely and honestly to the best of their knowledge. The words they remembered are substantively identical. Although nothing turns on the exact wording of the comment, I prefer the Employee’s recollection given that she wrote it down a short time later. For these reasons, I find that the Faculty Member said to the Employee words to the effect, “you will have to let me know if this is a misstep but I am crazy about you”.

[71]           The Faculty Member regrets making the comment. He testified that the comment was not planned, and in retrospect, he would not have said it. The Faculty Member remembers being moved to express how much the Employee had come to mean to him. He had come to treasure her company and was giving voice to the affection he had for her. She had come to mean a great deal to him. As he went to express himself, he remembers thinking of saying how fond he was of her. He thought that sounded old and stuffy, so instead, he said that he was crazy about her. He acknowledges that his guard was down. He was feeling the effects of alcohol after a long day and very little sleep.

[72]           The Faculty Member explained prefacing his comment with words, as he remembered them, to the effect “forgive me if this is a mistake”, because he was not sure how the comment would be taken. He did not really have an expectation of what the response would be. He hoped it would be appreciated. He did not imagine they would become girlfriend and boyfriend. He was not seeking a sexual relationship.

[73]           After the Faculty Member made the comment, there was silence and they continued walking. The Employee remembers a very long pause. She testified that she broke the silence by apologizing for being silent. She was struggling with what to say. She remembers saying words to the effect that he is her boss and married and she would never think of him that way.

[74]           The Faculty Member remembers that the Employee was quiet for a long time. When the silence was broken, he thinks by her, it was clear to him that she did not appreciate the comment. The Faculty Member does not remember her first words, but he does remember apologizing immediately and continuing to apologize throughout that evening. He remembers saying words to the effect, “forgive me, I should have never said that”. He remembers the Employee saying words to the effect that she had been hurt in the past when she had forgiven such things. He remembers the Employee saying that she did not want a personal relationship with him, and that she only wanted a professional relationship. He told her that he only wanted a professional relationship as well. The Faculty Member was unable to remember the sequence of the conversation, or what was said on the street or back at the hotel. He has memories from that evening but cannot remember what was said on the street or back at the hotel.

[75]           The Employee remembers the Faculty Member offering to speak about what had just happened on the street. She remembers being unable to speak without raising her voice because the street was busy and noisy. She remembers crossing a busy intersection and walking towards the hotel so she could pick up her bag and return to her family.

[76]           When they arrived at the hotel, the Faculty Member offered to bring her bag down to the lobby. The Faculty Member also offered to discuss the incident in the hotel restaurant. The Employee remembers that the loud noise of the restaurant was making her feel more anxious. The Employee agreed to speak in the Faculty Member’s hotel room because she thought his room would be quieter. She replied to the Faculty Member that she did not think he was going to jump her. So they went up to the hotel room to pick up her bag. I pause, here, to acknowledge that the Employee’s evidence was not consistent on this point. She gave evidence in her direct examination that she moved away from in her cross-examination. The Employee testified in direct that the Faculty Member insisted that she come up to the room. The Employee agreed on cross that the Faculty Member offered to bring down her bag and she replied that I don’t think you are going to jump me.

[77]           When they arrived at the hotel room, the Employee sat down at the table. The Faculty Member remembers that her belongings were on the far side of the table. He saw her walk over there and sit down on the chair next to them. The Faculty Member remembers that when she took a seat at the table, it was clear to him that she wanted to talk about what happened. That indicated to him that there was going to be some discussion of what happened. The Faculty Member remembers feeling terrible. He described the conversation in the hotel room as an attempt to remedy his mistake. He gave voice to something that he should never have given voice to. It had clearly hurt the Employee, and he was taken aback by how deeply she was hurt. He was doing his best to find some way to make it better. He was trying to find a way back to where they ought to have been, which was happy after a successful day of work.

[78]           They talked for over one hour. They both estimated that it may have been an hour and a half. The hotel room was not big. There was a small table with two chairs. The Employee was sitting on one chair. The Faculty Member does not know why he did not sit in the second chair. He decided to stand away from her. The Employee remembers the Faculty Member standing propped up on a console. At some point, the Employee remembers that the Faculty Member went to sit on the bed. The Faculty Member remembers sitting on the bed. At some point, the Employee remembers that the Faculty Member leaned down on his elbow.

[79]           The evidence is undisputed that the Faculty Member made no advances in the hotel room. The Faculty Member acknowledged that his comment had stepped over a line and was inappropriate. He remembers referring to himself as an idiot. He wanted to get back to their effective professional working relationship, and he wanted to make that possible again. One of the things that is fixed in the Faculty Member’s memory is how badly the Employee was feeling. The Faculty Member described the Employee as very hurt, devastated, shattered. That she was deeply sad sounds almost too light. He found that troubling and knew that he was not in a position to alleviate that in any other way than to apologize.

[80]           The Faculty Member recalls apologizing in many different ways. He also recalls hearing the Employee say in a variety of ways that she did not want a personal relationship with him and that she only wanted a professional relationship. He agreed. At some point, she discussed him being her boss and being married. She recalled that discussion on the street, he remembers it in the hotel room.

[81]           The Employee remembers the Faculty Member advancing three facts: he is married, her boss, and twice her age. She remembers correcting him that he was not exactly twice her age. For her, however, those were not all the facts that matter. The most important fact for her was that she was really not interested in him. It enrages her that he did not acknowledge the facts that mattered to her.

[82]           The Employee remembers saying that they had a good working relationship. She remembers the Faculty Member responding that it saddens him that she is referring to the past tense. She remembers him saying that he regarded them as equals. She remembers saying that they are not equals and that he is her boss. She remembers saying that this would only hurt her professionally and personally. She remembers him saying that it was never his intention to hurt her. They both remember the Employee expressing that she would be withdrawn and distant for a while. The Employee remembers saying “you can’t call me on that”. The Faculty Member responded with understanding, and for him, that was fine. The Employee remembers hearing the Faculty Member say words to the effect, “okay” and “I just hope that you will still smile”. The Faculty Member does not remember saying those words, but he does not dispute that he may have said them. He explains that he was genuinely trying to make amends.

[83]           The Employee was enraged by the “hope you will smile” comment, because of the implication that she would just get over it. At some point, the Faculty Member expressed his belief in her wisdom and maturity to get them back to a good working relationship. The Employee was also enraged by this comment, because of the implication that it would be her job to rectify the relationship. She described his words as “really weird”. She wanted to say “fuck you”. She felt that the Faculty Member was putting immense pressure on her to “make it okay what he has done”. The conversation ended at some point. The Faculty Member remembers the Employee ending the conversation. The Employee remembers saying that she is going to go now. The Faculty Member felt shame.

[84]           The Faculty Member and the Employee walked down to the hotel lobby so that the Employee could pick up a taxi to go to her family. Before getting into a taxi, the Employee turned to the Faculty Member and stepped towards him. That is when the hug occurred. The Faculty Member did not initiate the hug. The Employee did not acknowledge initiating the hug. She remembered the hug as something that happened and not something that she initiated. She would not say that she hugged him. Rather, she testified that a “hug took place and I remember an intense obligation to hug him”. The Employee says that, during the hug, she remembers their cheeks touching which she found disgusting and “not okay”. She believes that the Faculty Member pressed his cheek against hers, but he denies that to be the case. Nothing turns on who initiated the hug. The evidence is undisputed that the hug was not a romantic gesture. I find that a hug took place to diffuse the tension.

[85]           Both parties found the hug awkward. They described it as stiff and meant to diffuse the tension. The Employee found the hug very traumatic and a hard moment to recall. She felt extremely uncomfortable about the hug. She felt that her body was being used to diffuse the tension. The Employee then got into the taxi and left. There was never any other physical contact between them. The Employee testified that she was still in a state of shock and a bit numb.

[86]           The Employee testified that, as soon as she got in the cab, that she immediately texted her female friend. Below is an excerpt of what was written:

[87]           Several months later, the Employee provided explanations to accompany these texts. This was done in the context of an external investigation into her complaint against the Faculty Member by the University. She was concerned that the investigators may misinterpret her comments, such as “don’t call him a bastard”. She explained asking her friend not to call the Faculty Member a bastard, because when they went to school together, “rat bastard” is what they called men who do “shitty” things. She explained making these comments more out of hope. She wanted the investigators to understand her as a person who has a hard time feeling anger. She explained that she could not afford to be angry at that moment, and that she needed space and to reflect on what happened. She was feeling a lot of anxiety about the investigation and did not trust the male investigator. She testified that it felt scary to be sharing her personal messages, and to have those relationships under a microscope.

[88]           The following day, which was a Friday, the Faculty Member attended an early breakfast meeting that did not include the Employee. They met in the hotel shortly after 1 pm to prepare for a meeting that was scheduled for 2 pm. They exchanged the following text messages:

[89]           The Employee remembers feeling intensely anxious. She remembers letting herself into the Faculty Member’s hotel room where they worked until they left for their meeting. At some point, they were driving to a meeting. The Employee had found a store for special jam that she liked. The Faculty Member drove her to that store so she could buy the jam before dropping her off. The Faculty Member offered to drive her to her family’s house, but she asked to be dropped off on a street. The Faculty Member dropped her off on a street. They went their separate ways. He went to a work-related dinner. She travelled to Victoria on her own. The Faculty Member stayed in Vancouver over the weekend to attend a work-related commitment.

[90]           That day, the Employee texted two friends. She continued texting with her female friend that she and the Faculty Member had “talked about work going forward” and she thinks “it will be okay”. She also began texting a male friend. In this text exchange, she explained that she needs to “talk with a man who knows me and has cared for me” because “something super strange, unexpected, and a little scary happened” and “I feel very off and a bit rattled”. The Employee described her male friend as a real support person in her life, there was a “certain beautiful connection between us that was more than friendship”.

[91]           The Employee describes the last day of their business trip as strained. At some point, she remembers the Faculty Member complimenting her on the prospects of becoming a scholar. She was upset by his compliment. She felt that he was trying to hold onto her and be part of her future when she simply wanted him to get out of her life. The Faculty Member acknowledges making the comment during a gap in one of their meetings. He described it as a conversational gambit that completely failed. It was clear to him that she did not want to discuss her career prospects that day, so he stopped. He explains that his comment was consistent with previous conversations they had about what she might want to do with her future. In those past conversations, he had expressed the opinion that she would have no trouble succeeding because of her intellect, level of analysis, and ability to engage with a project. He explained that as the foundation for his opinion.

[92]           The Employee testified that she was battling internally. On the one hand, she had a love for her job. On the other hand, she did not want to see the Faculty Member ever again. She testified that she could not find a way out of her feelings of discomfort and violation and anger and humiliation.

[93]           Within days of returning to Victoria, the Employee expressed to her female friend about leaving her job. The Employee texted her friend that “I don’t think I can stay at my job”, “it’s just too uncomfortable”, “I can’t put it to the back of my mind”, and “I can’t let it go”. The Employee wrote that she thinks she needs to move cities and described job opportunities in another province. She wrote that she has not been happy at the wider university, has not been happy with Ms. A, and that the Faculty Member “made it tolerable”. She wrote, “I loved the […] aspect of my job and he is an integral part of that”, “the other half of the job did suck” and “the other boss isn’t so good”. The Employee wrote that the Faculty Member “was the reason why I wanted to stay”. She texted that “I can’t ask myself to do something that makes me this uncomfortable”.  She texted that the Faculty Member “had always been super kind and we had great conversations but I was completely blind sided”. She made plans to talk to her friend over the phone.

[94]           The Faculty Member was out of the province for work the following Monday March 7. That day, the Employee sought a therapist. In her email, she wrote:

[95]           The Faculty Member flew back to Victoria the next day on Tuesday March 8. He was scheduled to arrive that afternoon. The Employee was hoping that he would not stop in her office. She remembers the Faculty Member knocking on her office door and walking into her office. She described it as barging into her office. She described her whole body was screaming and that it was not okay for him to come into her space. The Faculty Member denies barging into her office. I find, as an undisputed fact, that he knocked on her office door before entering. He remembers meeting briefly with the Employee in her office, and that these kinds of meetings were normal. While I do not accept that the Faculty Member barged into her office, I accept that the Employee experienced their interaction as a violation of her boundaries.

[96]           The Employee testified that, rather than dropping by her office, the Faculty Member should have communicated with her by email. That, in fact, did also occur. On March 8, the Employee and the Faculty Member exchanged several emails in relation to a report that they were preparing to send to a prospective donor. The Employee recommended making changes to the report that the Faculty Member endorsed. The Faculty Member initiated one exchange:

[97]           The Employee responded:

[98]           Although the Faculty Member asked whether it would be helpful to discuss her preliminary views this afternoon on this issue, the Employee declined. She told him that she would follow up with more tomorrow morning. She shared her preliminary thoughts:

[99]           The Faculty Member responded, “I like the idea of deletions” and “your general approach sounds good”. That same day, the Employee initiated another exchange of emails where she recommended that the Faculty Member take several steps as a follow up. The Faculty Member responded, “Perfect!” to her recommendation.

[100]      The Employee felt violated after she saw him on March 8. She testified that she began crying in the safety of her car after work. For her, crying was an acknowledgement of how stressful it was to be at work. She testified to her fear that if she showed this to the Faculty Member, and if he knew how she was truly feeling, he could just fire her. She described the Faculty Member as a man who clearly did not understand boundaries and the space that she needed.

[101]      At the end of that week, on March 11, the Faculty Member and the Employee were scheduled to meet in his office. The Employee testified that, at the end of that meeting, the Faculty Member asked if he could say something about last week. She responded, “no, that would make me really uncomfortable”. She remembers the Faculty Member saying that he felt as though he had lost her respect and wanted to earn it back. The Employee described feeling so violated after he spoke. Upon returning to her office, she took a scrap of paper and wrote down what happened. (The Employee lost that scrap of paper, so it was not admitted into evidence). That evening, when she got home, she began writing her complaint to the University. The Faculty Member’s version of this event is different. He remembers apologizing but does not remember asking for permission to speak. That discrepancy is not material. There is no dispute that the Faculty Member expressed an apology that the Employee did not accept and found unwelcome. She experienced his apology as a violation of her boundaries.

[102]      The following week, on March 15, the Employee initiated several emails with the Faculty Member. In one email, she shared her views on one document, which the Faculty Member endorsed, “this looks really good” and “let’s go with this”. He then asked for her opinion on a matter, which she gave, and he accepted. He asked her whether they should still meet that afternoon to make sure they are on the same page as to how to approach a meeting. The Employee wrote, “I’ll pop by at 2:30 and maybe we can do a run through of who says what. I don’t imagine it will take long.” That same day, the Employee initiated another email exchange with the Faculty Member in which she shared an example of a story to share:

[103]      The Faculty Member responded with enthusiasm. Later that day, the Faculty Member initiated an email exchange with the Employee asking about what stories she and her colleague had chosen. The Employee responded that they would share the drafting of the stories because her colleague “wanted to do some of the writing”. She described the meeting with her colleague as “fine” and “no bumps”. The Faculty Member expressed concern about one story because it referred to a sensitive project in the program. She wrote that it was “good to know” and agreed to write about the less sensitive project.

[104]      On March 18, before the weekend, the Employee advised Ms. A that she was going to have to reschedule their next performance review meeting because of her vacation plans. Ms. A was unaware that the Employee had any vacation plans. Ms. A reminded the Employee that she is required to approve any vacation in advance, and that she should be made aware of any such requests in the future. Ms. A also advised her that she would be rescheduling her next performance review earlier because she wanted to speak with her “sooner rather than later” about some issues. After the weekend, the Employee apologized to Ms. A for not including her on vacation requests and sick day communications.

[105]      The Faculty Member was sick that week. The Faculty Member had to reschedule a meeting with the Employee and another colleague because he was sick. Before meeting with their colleague, the Faculty Member asked the Employee whether she wanted to meet beforehand to deal with a separate issue. The Employee proposed meeting thirty minutes earlier to “touch base” about that issue. Later that day, the Employee emailed both Ms. A and the Faculty Member:

[106]      In summary, the email exchanges between the Employee and the Faculty Member demonstrate the ease of their professional communications. They continued to work productively together on a number of projects throughout this time period. I acknowledge that the Employee was not finding it easy to engage professionally with the Faculty Member but by her own admission maintained a professional facade.

[107]      The evidence shows that they saw each other only briefly and a few times between March 4, 2016 and April 5, 2016. I find, as undisputed facts, that they were simultaneously present at work for approximately 9 days over that period and that they had meetings on approximately 7 of those days. During this month, the Faculty Member was travelling out of the province and sick for approximately ten days. The Employee’s grandmother died, and she took time away from work.

[108]      On April 5, 2016, the Faculty Member and the Employee had a scheduled meeting. At the end of that meeting, the Faculty Member decided to check in with the Employee generally. The Employee remembers the Faculty Member checking in with her on how the job was going for her. The Employee remembers saying “not good” with emphasis. She then raised the March 3 incident. She expressed that she was thinking of moving and that she felt really hurt by what had happened and by his actions. This prompted a series of discussions that lasted over three days.

[109]      The Employee remembers talking about quite a lot during those meetings. She remembers telling the Faculty Member about an article about how men who have daughters are more likely to promote their female employees and pay them fairly. She thought that, since the Faculty Member had daughters, that he was going to be one of those bosses who saw women as capable. She remembers bringing up the subject of his daughters, and she believes that was the first moment that something actually clicked in him. She remembers being grateful that she found a way for him to potentially understand why his “crazy about you” comment “was so violating” for her. She remembers telling him that his behaviour undermined her professional competencies and capabilities. She remembers another key thing that she said, which she thought was rather bold, that she had seen him to be intensely strategic in his work life and that it really concerned her that he may have been strategic in trying to spend time with her. She remembers him responding that she gave him too much credit and that it was just a momentary lapse in judgment. The Employee remembers suggesting that he was a sexual predator. She told him that universities can be places where sexual predators can get away with things. He denied being a sexual predator and told her that it was just a momentary lapse in judgment. She told him that she is still reserving her right to decide that.

[110]      They both testified that these meetings were helpful and appeared to clear the air. The Employee felt better and proud of herself for bringing forward her feelings of hurt, her concerns, and for being rather bold about it. She felt that the week was better than the week before, because there was some acknowledgement of her hurt. However, she still did not trust him and she thinks she told him that. There was also a part of her that was still fearful that she would lose her job. She was glad that she had the conversation but still worried about whether he would develop some sort of strategy to fire her. She was still feeling very insecure about her employment.

[111]      In this way, their working relationship improved over time. There was a disconnect between what the Employee expressed on the outside and what she says she was feeling on the inside. This is demonstrated by her emails which were professional and demonstrated an ease of communication with the Faculty Member. In one exchange, the Employee invited the Faculty Member to talk in person rather than by email, which was not consistent with her testimony about not wanting him anywhere near her office. The Employee acknowledged this tension between her actions and her feelings. The Employee testified to days when she was so exhausted and afraid that she turned off the lights, locked her office door, and crawled under her desk just to have a moment with herself where she could be as sad as she was feeling. This evidence is relevant to the extent that, from the Faculty Member’s perspective, he was experiencing a professional working relationship with the Employee. From the Employee’s perspective, she was maintaining a professional demeanour but feeling like she was falling apart on the inside.

[112]      The Employee gave examples of where she felt that her boundaries were not being respected over the next few months.

[113]      On May 13, the Faculty Member offered to drive the Employee to a work meeting. Their exchange was documented. The Faculty Member offered to pick the Employee up for that meeting, and after she did not respond, he asked her to confirm what the plans were. The Employee then responded that it would be better if she met him there. She then asked to confirm closer to the date and sought help locating the meeting venue.

[114]      The Employee reflected on this incident. She testified that it violated her boundaries. From her perspective, the Faculty Member was demanding that she take him up on his offer to drive her to the meeting. While I find that the Employee genuinely believes this to be true, I find that the Faculty Member did not make any demand. The Employee acknowledged that they lived in the same neighbourhood and that in the past, the Faculty Member, and even his wife, picked her up for a work trip. When considered in context, the Faculty Member made an offer that was consistent with past practice. After she did not respond to his first request, he followed up and it was reasonable for him to do so in these circumstances. In any event, his offer was not accepted, and they both attended the meeting without incident.

[115]      At some point, the Employee also testified about the Faculty Member trying to set up a dinner for her and a colleague who was leaving the University. The Employee testified that neither of them wanted to attend this dinner. The dinner never happened. The Employee was upset with the Faculty Member for even trying to have contact with her in this manner. She described trying to avoid social contact with him without being too obvious or hostile.

[116]      The Employee and the Faculty Member travelled to Vancouver for business at the end of May. They were scheduled to travel separately and took their own cars. Just prior to that trip, her friend committed suicide. The Employee did not want to travel on the same ferry as the Faculty Member. She wanted to travel alone. She was expecting that the Faculty Member would be on the earlier sailing. The Faculty Member was planning to take an earlier ferry, but got delayed, and ended up on the same ferry as the Employee. The Faculty Member walked by her car prior to boarding. That was the only time they saw each other on that ferry ride.

[117]      The Employee reflected on this incident. She believes that it was a violation of her boundaries. She believes that the Faculty Member manufactured a delay to ensure that he would travel on the same ferry with her. She believes that the Faculty Member was tarrying in his office answering emails, not giving himself enough time to drive to the ferry terminal, and stopping for cooked food on the way to the ferry because he purportedly saw a sign saying his ferry sailing was full. She does not believe that his ferry sailing was full. Rather than walking by her car, she expected that the Faculty Member would email or text her to let her know that he was accidentally on her ferry or leave her alone altogether.

[118]      I find that her genuine belief is speculative. There is no reliable objective evidence from which such an inference can be made. I find that the Faculty Member did not manufacture a delay to ensure that he would travel on the same ferry with her. The Faculty Member has provided a reasonable explanation for what happened that day. The Faculty Member acknowledged that the Employee did not want to travel with him on the same ferry. He tried to travel by other means the following day, but he was unable to cancel his hotel without penalty. He missed his ferry sailing by a few cars and when it was inevitable that they would be on the same ferry as the Employee, he tried to acknowledge that in the least awkward way as he knew how. He made sure that they did not see each other on the ferry ride.

[119]      The Employee testified to a meeting on June 6 when the Faculty Member disagreed with her so vehemently that her vision went white and she had to blink a few times to be able to see again. The Faculty Member does not remember this incident. While the Employee remembers her reaction to this incident, her oral evidence is not corroborated by any documents that she authored at the time. This incident was not in her written complaint. It is not in the investigator’s report. It is not corroborated by other witnesses. Although the Employee’s evidence appears to suggest that this incident took place on the same day that she met with Ms. A, the Employee did not report this to Ms. A at the time. Ms. A does not recall hearing about it, and it was not in her notes of that meeting. I also observe that this was the only time in the Employee’s evidence that she attributes such a negative reaction to the Faculty Member. For all these reasons, I do not accept that this incident occurred as remembered by the Employee.

[120]      The Employee successfully passed her probation on May 16, 2016. She waited approximately three weeks before reporting the incident because Ms. A was on vacation. The Employee reported the “crazy about you” comment to Ms. A on June 6, 2016. A few days before, on June 2, 2016, she emailed her supervisors, Ms. A and the Faculty Member, that she had lost her friend to suicide and that she had postponed an exam in relation to a course that she was taking to further her professional qualifications because she did not want to study when grieving. She thanked them for their “kindness and understanding”.

[121]      On June 6, 2016, the Employee met with Ms. A and her union representative. Ms. A did not make detailed notes of the meeting. She only recorded the comment that the Employee attributed to the Faculty Member. Ms. A remembers the Employee reporting the comment as, “I hope I am not making a misstep, but I think the world of you”. I pause, here, to acknowledge that Ms. A did not accurately record what the Employee reported to her. Although Ms. A was a credible witness, like the other witnesses in this case, her evidence was not always reliable. This incident demonstrates the limits of her ability to recall and record information accurately.

[122]      Ms. A remembers asking the Employee if she was sure that the Faculty Member was coming on to her. The Employee responded absolutely, and that he knew what he meant. The Employee told Ms. A that the Faculty Member had repeatedly apologized for his comment. The Employee also told Ms. A that her union had advised her not to disclose the incident until after she passed her probation. Ms. A was upset with the union for, from her perspective, giving bad advice to a probationary employee. Ms. A testified that the Employee should have come to her earlier, and that the Employee should not have had to deal with this on her own. Ms. A found the situation so unfortunate because, from her perspective, the Employee had a lot of time to sit with this.

[123]      The Employee testified that she really did not know how Ms. A was going to respond. She remembers Ms. A responding “with a lot of kindness and gentleness”. The Employee found Ms. A very kind and gentle and supportive and helpful with details that were not at the top of her mind at that point. The Employee testified that she was so appreciative to finally have told Ms. A. The Employee felt that she had been carrying around a huge weight. The Employee remembers a discussion about an investigation. She remembers slouching back in her chair and hoping that it would not be a male investigator. She remembers that Ms. A was “very helpful with practical details” and reassured her that she “won’t have to work under” the Faculty Member.

[124]      Ms. A immediately reported the incident to her boss, and together, they immediately reported the incident to Ms. B.

[125]      That day, the Employee went on a medical leave of absence at her request. She received the benefits available to her under her collective agreement. She did not work with the Faculty Member again. Later that month, her union filed a grievance. The University hired external investigators to investigate her allegations against the Faculty Member. The union agreed to hold the grievance in abeyance pending the investigation.

[126]      The Employee was very upset that the University chose a male investigator after she had requested the appointment of a female investigator. When the Employee raised her concern about the appointment, a woman was added to the investigation team. She believes that both investigators were not required, and her request for a female investigator was reasonable and should have been accommodated at the outset.

[127]      The Employee did not trust the male investigator. She understood that he had taught at the University and very closely matched the Faculty Member’s demographic as a middle-aged male. She feared that he would feel more kinship with the Faculty Member. This increased her anxiety that she would not be believed. She argues that this concern was well founded and borne out by several inappropriate comments made by him during the investigation interviews.

[128]      The investigation took approximately six months. The Employee was very upset with this delay. The Employee argues that the University left her in a state of serious anxiety over a period of months about whether her pay would continue while she was attempting to recover from the Faculty Member’s conduct. While she continued to be paid, she endured months of uncertainty about whether her pay would continue. According to the Employee, the University failed to take simple steps that were open to it in a timely way to ensure that she was paid when she was not able to work.

[129]      After finishing the investigation, the two investigators prepared a report summarizing their findings. The investigation concluded that the Faculty Member’s conduct did not amount to sexual harassment under the policy. Neither the Employee nor the Faculty Member accept all of the investigators’ findings of fact. Although the report was admitted into evidence, I did not consider the report for the truth of its contents.

[130]      The Employee felt that the report had to be wrong. She felt that the investigators did not take into account the context of what happened to her, that they neglected the severity of the power imbalance between her and the Faculty Member. She experienced her boss come on to her during her probation. She did not see it as part of her job to deal with his emotions. She felt that they minimized her experience in a number of different ways. She gave an example where she felt that they discounted her experience of saying “no” to the Faculty Member and him apologizing anyways. She experienced this as a violation of her boundaries. She gave another example when, over dinner, the Faculty Member made a comment that she experienced as flirting and the Faculty Member described as flirting with the line. For the Employee, flirting was crossing the line.

[131]      On the one hand, the Employee was surprised that the investigators found a way to say that her experience was not sexual harassment because it seemed very obvious to her that it was sexual harassment. On the other hand, the Employee was not surprised because she had a negative experience with the male investigator who, from her perspective, demonstrated that he did not understand the power dynamics and the harm done to her.

[132]      The University relied on this report to deny the Employee’s grievance. The Employee argues that it was a serious failure for the University to deny her grievance based on a deficient investigation. The University continued to deny the grievance until it was withdrawn by the Employee. She explained withdrawing her grievance in order to ensure that it would not be an impediment to her human rights complaint proceeding.

[133]      The Employee chose to go on medical leave at least until the investigation was complete. Although the Faculty Member is employed in a different capacity, the Employee has decided not to return to the Faculty. She remains employed at the University.

[134]      The Employee testified that she did not have a lot of trust in the University. She felt angry, minimized, powerless, and revictimized. She felt like they were all just trying to pretend that this was all okay. What happened to her was not okay. She felt that they were saying that it was part of a woman’s job to be exposed to a “romantic pass” by her boss. That seemed very wrong to her. She felt like the Faculty Member was willing to risk her employment and career “at the chance of having his desires filled”. The Employee did not consider this a “world that treats women with dignity”.

[135]      The Employee testified, “nope, I have more rights than this”. She explained filing a human rights complaint because she wanted to keep the option of having a more neutral third party rule on her case. Although she had opportunities to settle this complaint, she explained that she pursued her complaint to a hearing because she wanted to hold the Respondents accountable for their wrongdoing. For her, this is about accountability. From her perspective, the Faculty Member has not acknowledged what he did. Although there have been apologies, she does not believe that the Faculty Member apologized for what he did, accept responsibility for what he did, or recognize “what truly transpired”.

[136]      The Employee experienced a significant loss. She wants the adversity she has experienced to be acknowledged by both the Faculty Member and the University. The Employee feels like the University has condoned and defended the Faculty Member’s behaviour. For her, this does not seem like a way to treat someone who comes forward after experiencing this kind of situation. She wants the University to acknowledge that her human rights have been violated.  She believes, that if the University is sincere about wanting to progress social justice then they have to have a sincere stance against the sexualized violence that she experienced.

[137]      The Employee has found it extremely difficult to go through a hearing, but believes that it is the right thing to do because of her core values of integrity and dignity and human rights and wanting to make the world a better place for the next generation. She wants to be proud of the legacy that she is able to leave in this life, however small. She feels pride in who she is. For her, pursuing this complaint is the right thing to do. She wants to make a difference and stand up to that kind of power. What she experienced was “not okay” and “so unacceptable”. She expects the Tribunal to make a finding in her favour.

[138]      The Employee is protected under the Code from sex discrimination in her employment. This complaint alleges sexual harassment, which is a form of sex discrimination. There are two Supreme Court of Canada decisions that inform the legal test that I am bound to apply to the facts of this case. The first Supreme Court of Canada decision is Janzen v. Platy Enterprises, 1989 CanLII 97 (SCC), [1989] 1 SCR 1252, 59 DLR (4^th) 352 [Janzen] which sets out the legal test for sexual harassment. The second Supreme Court of Canada decision is Moore v. British Columbia (Education), 2012 SCC 61 [Moore] which sets out the legal test for sex discrimination.

[139]      The onus is on the Employee to establish her case on a balance of probabilities: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, pg. 558. If she does not establish her case, then there is no discrimination. If she establishes her case, then the burden shifts to each respondent to justify their conduct: Moore at para. 33. If the conduct is justified then there is no discrimination.

[140]      The Employee argues that she does not need to establish sexual harassment, that she only needs to establish sex discrimination. She argues that the facts here warrant a finding of sex discrimination because of the enormous adverse impact in her employment that she experienced that is related to her sex. She also argues that the facts here warrant a finding of sexual harassment because of the wrongfulness and harmfulness of the Faculty Member’s conduct. She wants the Tribunal to underscore the wrongfulness of introducing intimate relationships into the workplace. She says that this is the very kind of wrongdoing that the Code is designed to name, protect, and remedy.

[141]      The legal test for sexual harassment was set by the Supreme Court of Canada thirty years ago in Janzen:

[142]      There are three elements to this test. Under Janzen, the conduct at issue must:

[143]      There is a broad range of conduct that falls within the definition of sexual harassment. The conduct may be physical or verbal, it may be overt or subtle, it may have arisen from one incident or a number of incidents. The adverse consequences may be “any sexually-oriented practice that endangers … continued employment, negatively affects … work performance, or undermines … personal dignity”: Janzen, 1280. There are as many circumstances as there are human interactions. For this reason, any legal finding of sexual harassment must be grounded in the context and facts of each case.

[144]       One common theme is that sexual harassment is ultimately about an abuse of power: Al-Musawi v. One Globe Education Services, 2018 BCHRT 94, paras. 30, 33. As stated in Janzen:

[145]      To begin with, it is necessary to define the conduct at issue. This complaint is anchored in the events of March 3, 2016. The main events happened after a successful day of meetings. The main conduct, at issue, happened after dinner when the Faculty Member told the Employee that he was crazy about her.

[146]      The Employee alleges that this comment is part of continuing conduct on the part of the Faculty Member to groom her into a sexual relationship. She believes that the Faculty Member is a sexual predator. She refers to a number of incidents before the comment that she believes were efforts by the Faculty Member to groom her into a sexual relationship. She refers to a number of incidents after the comment that she believes illustrate the Faculty Member’s lack of respect for her boundaries. The Employee argues that a continuing conduct framework is a better model for the facts, here, than the framework in Pardo v. School District No. 43, 2003 BCHRT 71 [Pardo] where the Tribunal dismissed a complaint that involved one isolated comment.

[147]      I do not agree. None of the incidents referred to by the Employee can reasonably amount to predatory grooming on the part of the Faculty Member. I find that her allegations of predatory grooming come from hindsight. It was only after the Faculty Member made the comment that the Employee reflected and reconsidered their working relationship.

[148]      This is evidenced in her complaint to the University, which was drafted over a period of six months. The University’s equity and human rights office was a source of support for her during this drafting process. This support included reviewing drafts of her complaint and providing comments to bolster her claim. In one draft, the Employee referenced seeing a professional therapist to help her understand what she had been going through. She wrote that after she told her therapist her story, he said that it sounded like she had been groomed by a sexual predator. The equity and human rights office commented on her draft in track changes, and in one exchange, wrote, “even though this section makes perfect sense, I worry a little that it might be interpreted as you being unduly influenced by your therapist?”. She suggested deleting this section.

[149]      Taken together, the objective evidence shows that the Employee and the Faculty Member had a productive and professional working relationship. The Employee testified that they had a good working relationship which made the Faculty Member’s comment all the more violating for her.

[150]      The Employee testified that, after the comment was made, she began to question the sincerity of all of their previous interactions. The comment completely destroyed her trust in the Faculty Member. Up until that point, she had taken all of his encouragement and mentoring as genuine and part of an effective professional relationship related to her abilities and professional accomplishments. She suddenly came to see his conduct, instead, as an attempted seduction. Her evidence is that the comment transformed their relationship from one where she was confidently building a professional relationship to one where their interactions became a source of intense anxiety for her. It shattered her confidence that she had won his praise for her work rather than her appearance.

[151]      She reflected on a number of incidents before the comment that made her feel uncomfortable. She argues that these incidents establish a continuing course of predatory grooming. I address each incident below.

[152]      First, I consider the hiring process. The Employee’s evidence is that the grooming started from the moment she was considered for the position. She believes that the Faculty Member hand picked her for the position. While I find that her belief is genuinely held, it does not accord with the objective evidence.

[153]      There is no dispute in the evidence that the hiring process was unusual. The Employee was the only candidate screened into the competition. While unusual, it was not improper. Ms. A received approval from human resources to proceed with a competition where there was only one potentially suitable candidate. Ms. A, and not the Faculty Member, identified the Employee as the only potentially suitable candidate. I find the following as undisputed facts. Ms. A was the hiring manager for this competition. She reviewed all of the resumes. She initially considered it a failed competition, because in her estimation, none of the candidates were qualified. Before declaring it a failed competition, she reviewed the resumes and identified the Employee’s resume as worthy of further attention. She explains she went out of her way to identify a potentially suitable candidate, because the position had been vacant for some time.

[154]      Notwithstanding that the Employee did not meet all of the skills and qualifications, Ms. A asked the Faculty Member to review her resume. Ms. A and the Faculty Member both testified that they were impressed with her professional experience. With the Faculty Member’s approval, Ms. A decided to interview the Employee. Ms. A was impressed with her professional demeanour during the interview, so she recommended that the Employee be interviewed by the panel of three interviewers. That panel was comprised of Ms. A, the Faculty Member, and another professional at the University. I find, as an undisputed fact, that the Faculty Member did not know what the Employee looked like before her interview. It was the panel that decided, and unanimously agreed, to offer her the job after that interview. Both Ms. A and the Faculty Member testified that the Employee was hired based on merit alone. The Employee acknowledges that she was interviewed by the panel together. She takes issue with not having a formal interview, and instead, being offered the job provided that she passed the written test. Once she passed the written test, Ms. A then called the Employee’s references and sent her resume over to human resources to rate how much she should be given as a fair salary.

[155]      Second, I consider the prior business trips to Vancouver. I find, as undisputed facts, that the Faculty Member and the Employee took four business trips to Vancouver before the incident on March 3, 2016. The Employee takes issue with a number of incidents that, upon reflection, made her feel uncomfortable. She acknowledges that, at the time, she did not think anything of them. I address each in turn.

[156]      The Employee takes issue with being asked to book a hotel room during business trips. She described the Faculty Member as insistent. She also takes issue with working in the Faculty Member’s hotel room between meetings. She describes feeling uncomfortable meeting in his hotel room, but at the time thought, “maybe he is just so absentminded that he doesn’t understand the optics of this”. While her feelings of discomfort are understandable, these kinds of interactions were common for professionals in her job. Ms. A, who has over thirty years experience in positions like that of the Employee, testified that it was common practice for persons in positions like that of the Employee to stay in hotels and work in hotel rooms between meetings. Ms. A testified that, when she worked in positions like that of the Employee, she stayed in a hotel and regularly met with persons serving roles like the Faculty Member in hotel rooms during out-of-town business trips because they discussed confidential matters that was not appropriate to discuss in public places. The Employee was given the option of staying in a hotel but she chose to stay with family. This meant that she did not have her own hotel room to work in between meetings. Given this context, the objective evidence, the evidence of credible witnesses, and her own admissions, these interactions were not inappropriate.

[157]      The Employee takes issue with picking the restaurant where they would dine after a day of meetings. The Employee did not appreciate being asked by the Faculty Member to choose a restaurant. She expected the dinner to be expensed, and she did not expect him to pay out of his personal account. Although she describes this feeling more like a date than a business meeting, she did not feel this way at the time. She acknowledges the appropriateness of meeting over dinner. Ms. A testified about the importance of meeting over dinner. She explained that “some of the best strategic and debriefing sessions” occur during these kinds of meals. Given that they would be meeting over dinner, the Faculty Member explained that he was trying to be courteous when he gave the Employee the choice of where she wanted to eat. As for who paid, and how, it would have been inappropriate for the Employee to pay out-of-pocket for a dinner that she was required to attend for work. The Faculty Member provided reasonable explanations for how he paid for these dinners. Given this context, the objective evidence, and her own admissions, these interactions were not inappropriate.

[158]      The Employee takes issue with the Faculty Member singing on one occasion and asking her to sing on another. The Employee described one interaction that was “a weird thing more than anything” when the Faculty Member “asked about a folk song and busted out a tune” at a pub after a day of meetings in Vancouver. They had stopped at the pub to debrief after the meetings. She described it as a weird moment with people around that, from her perspective, reflected his lack of “social skills”. The Employee describes another occasion when the Faculty Member repeatedly asked her to sing a song she wrote. The Employee acknowledges enjoying her conversations with the Faculty Member, and that during these conversations, she readily shared information about writing songs on her guitar and jamming with her friends. It is not clear whether she played her music in the car when they were driving. Her evidence is that she was willing to play her songs while they were driving but she would not “sing it live”. The Faculty Member asked her to bring her guitar and repeatedly asked her to sing her songs. She said no and did not sing her songs acoustically. By her own admission, these interactions made her feel uncomfortable at the time, but not to the point where she raised it with the Faculty Member.

[159]      The Employee takes issue with the necessity of a business trip to Vancouver in February. She says, now, that her attendance was not necessary because they were not meeting with certain people. She believes that the Faculty Member manufactured the trip to spend time alone with her. Her belief, while genuinely held, is speculative. The itinerary clearly establishes the legitimate business purpose of this trip, which included a meeting with a program supporter. This was part of her job and clearly reflected in her performance goals and expectations. The objective evidence shows that this business trip was appropriate and within the scope of her duties.  

[160]      Third, I consider a number of contextual arguments advanced by the Employee. The Employee argues that the Faculty Member’s conduct must be considered in the context of the increasing closeness he was pursuing in that relationship, including confiding in her about challenges at the Faculty. There is no dispute that he confided in her about sensitive work matters. With that information, she was able to support a strategy that was ultimately successful. Given her role, it was appropriate for the Faculty Member to share that information. In my view, this contextual factor does not support a finding of predatory grooming behaviour.

[161]      The Employee also argues that the Faculty Member’s conduct must be considered in the context of the frequency of his compliments. She argues that the Faculty Member lavished praise on her to try to get her into bed. She argues that he only praised her work because he was trying to groom her, and that he cared more about her appearance than the success of their work. However, there is no reliable evidence that is reasonably capable of supporting this conclusion. There is no evidence that he ever commented on her appearance. All of the comments that he made, which she understood as compliments, were in reference to her skills and abilities. The Faculty Member complimented the Employee on her skills in her job. Those compliments were genuine and consistent, and there is nothing in the evidence to suggest otherwise. The Employee was a talented professional. The positive feedback that she received from the Faculty Member reflected her abilities and was consistent with the feedback she received from others. Even the two comments at issue in this complaint - the “because of you” and “crazy about you” comments – were in reference to her as a person and did not comment on her appearance.

[162]      Furthermore, the Faculty Member readily admitted that his feelings for the Employee had been developing for a while when he testified that “I had a growing realization that [the Employee] had come to mean a great deal to me”. He gave voice to that affection when he made the comment that he was crazy about her. The Faculty Member acknowledges that comment was a mistake. After he made the comment, he never said anything like that again. In this way, this is not a case of repeated verbal conduct.

[163]      The Faculty Member has repeatedly apologized for making the comment. The Employee did not accept his apologies. She experienced their subsequent interactions as a violation of her boundaries. It was clear that the Employee no longer trusted the Faculty Member. She wanted him to be held accountable for his comment, and for the impact of his comment on her. Nothing that he was saying or doing to make amends went far enough from her perspective.

[164]      In summary, none of the incidents that the Employee relies on support her argument of predatory grooming behaviour. I find that the Faculty Member’s behaviour as a whole was not predatory or sexual in nature. Taken together, the conduct going back to the hiring cannot be seen as sexual conduct. Nothing that occurred during any of the prior business trips can be seen as sexual conduct. I have taken into account sharing sensitive information about a program or complimenting her on her skills and abilities. The Faculty Member admitted that his feelings for the Employee developed over time, that the comment was a mistake, and that he repeatedly apologized for it. Taken together, there is simply no evidence of predatory grooming.

[165]      I pause, here, to acknowledge that the Employee wanted to lead similar fact evidence in this case to show a pattern of predatory conduct on the part of the Faculty Member. I did not permit the Employee to lead similar fact evidence because all of the evidence was hearsay. The sources of this information were on her witness list, but for a variety of reasons, were not called to testify at this hearing. In an oral ruling, I held that the Employee’s hearsay evidence was not admissible as similar fact evidence for the truth of its contents but only admissible to establish the scope of her knowledge and her understanding of what happened. This kind of similar fact evidence would not assist me in deciding the issues in this case. That the Employee was not allowed to lead such evidence is not prejudicial to her in these circumstances.

[166]      The Employee refers to Walker v. Sashmasters and another, 2018 BCHRT 95 [Walker] for the proposition that the Tribunal should not consider an event in isolation. She regards Walker as support for her argument that the continuing conduct framework is a better model for the facts, here, than the single incident addressed in Pardo. Walker is distinguishable on the facts to the extent that it was a preliminary decision that involved two separate incidents of alleged misconduct for which there was a factual dispute over an earlier incident. In Walker, there was not much discrepancy between the parties over the facts of one incident which the complainant alleged amounted to harassment. That incident involved an angry respondent and a missing paycheque, the complainant allegedly slapping him across the face and chasing him out of the office, and the respondent allegedly calling her a “crazy Russian bitch”. There was disagreement, however, over what happened during an incident that occurred a few weeks earlier when the complainant was cleaning the washroom with the door open. She alleged that the respondent invited her to come to the toilet so he could expose his genitals. He denied doing so and alleged that she went into the men’s bathroom when he was there. This was a factual dispute that could only be resolved after a hearing on the evidence.

[167]      In any event, I do not find a distinction between Walker and Pardo on the law. The law is clear that context is important in determining whether conduct violates the Code. In Pardo, the Tribunal said that “all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the Code”: para 12. Pardo recognizes, as does Janzen, that not every comment of a sexual nature will violate the Code. Rather, the focus is on the effect of the conduct on the complainant’s employment.

[168]      It is clear that, in the case before me, the alleged misconduct took place on March 3, 2016. The central allegation in this case is the comment made by the Faculty Member to the Employee on the night of this incident. This comment needs to be considered in the context of all of the circumstances of that day, and more broadly, all of the circumstances of their employment relationship. In this case, the most appropriate way to address this allegation of sexual harassment is through the framework in Pardo. To some extent, the Employee agrees. She argues that a full review of the circumstances here, as called for by Pardo, shows that the events here are precisely what the Code exists to prevent, to name, and to remedy.

[169]      In my view, the Pardo factors are helpful in assessing whether the third element of the Janzen test has been satisfied, which is whether the conduct resulted in adverse consequences to the complainant. My decision turns on that assessment. Before turning to the Pardo factors and the third element of the Janzen test, I turn to the first and second elements of the Janzen test, which require that the conduct be of a sexual nature and be unwelcome. These two elements are addressed below.

[170]      The Janzen test requires that the conduct be of a sexual nature. Janzen refers to any “sexually-oriented practice”.

[171]      I find that a single statement about being crazy about the Employee amounts to conduct of a sexual nature. The Faculty Member readily admitted that his feelings for the Employee had been developing for a while when he testified that “I had a growing realization that [the Employee] had come to mean a great deal to me”. He remembers being moved to express how much she had come to mean to him. He had come to treasure her company. As he went to express himself, he remembers thinking of saying how fond he was of her. He thought that sounded old and stuffy, so instead, he said that he was crazy about her. He gave voice to his affection for her.

[172]      In this way, the Faculty Member expressed a romantic interest in the Employee which was not reciprocated. He never expressed that interest again. The Employee experiences it now as a romantic pass. The awkwardness of their subsequent interactions bolsters my finding that the Faculty Member made a pass at the Employee that failed. Given this context, I find that the conduct is of a sexual nature.

[173]      I reject an argument that was advanced in this case that the Janzen test requires that the comment be made “because of her sex”. In my view, this argument advances a standard of strict causation which is higher than the standard that I am required to apply to the facts of this case. The Supreme Court of Canada in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 addressed the nature of the connection required between the adverse treatment and prohibited ground. The court explained that since human rights jurisprudence focuses on the discriminatory effects of the conduct, rather than on the existence of any intention or direct causes, the phrase “because of” should be taken to mean “based in part” or “need only have contributed to”. The Court of Appeal has recently described this as an “attenuated form of causation” that is lower than the “strict causation” applied in other kinds of cases: Vancouver Area Network of Drug Users v. British Columbia Human Rights Tribunal, 2018 BCCA 132 [VANDU], para. 62; leave to appeal denied 2019 CanLii 6022 (SCC).

[174]      The test in Janzen requires that the conduct be unwelcome. Showing that conduct is unwelcome requires an objective assessment of whether “it is reasonable to conclude that a reasonable person would have recognized the conduct as unwelcome in the circumstances”: Mahmoodi v. University of British Columbia and Dutton, 1999 BCHRT 56 [Mahmoodi], para. 140. In other words, a complainant must establish that the respondent knew or ought to have known that the conduct was unwelcome. The standard is an objective one because what one person may find objectionable may not necessarily be objectionable to another person. A respondent can only be expected to refrain from engaging in conduct which they can reasonably be expected to have known was unwelcome: Mayes v. RFind Systems and others, 2012 BCHRT 304, para. 17.

[175]      I acknowledge that this element of the Janzen test may be objectionable to the Employee for a number of reasons. First, she bears the onus of establishing the nature of a consensual relationship. The Employee testified about the unfairness of carrying this kind of a burden. It has been thirty years since Janzen was decided, and it may be time to revisit whether this requirement unfairly places the burden of establishing a lack of consent on a complainant. Some argue there is support for moving to an affirmative consent standard that shifts the burden of proof to the respondent. The parties, in this case, did not make submissions on this issue, which requires a more rigorous analysis than I am in a position to offer. I leave this task for another day.

[176]      Second, the Employee was visibly troubled by some of the submissions advanced in this proceeding. I observed her, at one point, place her hands over her ears. These submissions were in relation to this element of the Janzen test. I acknowledge that this element of the Janzen test raises the risk that gender-based myths and stereotypes will be advanced in parties’ arguments, as discussed recently in academic research: Bethany Hastie, Workplace Sexual Harassment: Assessing the Effectiveness of Human Rights Law in Canada (Vancouver: University of British Columbia, 2019) [Hastie].

[177]      I identify three myths and stereotypes that do not factor in my analysis.

[178]      First, the lack of protest does not factor in my analysis. I reject the argument that evidence of protest is required to establish the unwelcomeness of conduct. That the Employee and the Faculty Member continued to work together productively for another three months after the incident, or that the Employee did not tell the Faculty Member that she did not want to continue working with him, is not determinative. It is not necessary for a complainant to expressly object to the conduct and the law recognizes that a person’s behaviour “may be tolerated and yet unwelcome at the same time”: Mahmoodi, para. 141.

[179]      Second, the delay in reporting does not factor in my analysis. I reject the argument that evidence of early reporting is required to establish unwelcomeness. I acknowledge that non-reporting is a stereotype that privileges complainants who resist and report immediately. That the Employee waited more than three months before reporting the comment to Ms. A is not a fact that goes against my finding that the conduct was unwelcome. A person may choose not to report for a variety of reasons including fear of negative job-related consequences, not being believed, attacks on their reputation, or the difficult nature of the investigations: Hastie. In this case, the Employee testified that she was advised by her union not to report the incident until she successfully completed probation because of fears of being fired. That she acted on this advice should not be held against her. After she completed probation, the further delay was due to Ms. A being on vacation.

[180]      Third, participation in prior behaviour does not factor in my analysis. I reject the argument that the Employee engaged in a pattern of behaviour with the Faculty Member that invited his comment. The Employee and the Faculty Member willingly engaged in conversations about their values and interests, which they both agreed strengthened their working relationship. In my view, that they were friendly and had these conversations does not suggest a pattern of consent to engage in a romantic relationship. It also does not supporting a finding that the Employee welcomed the conduct, that she is less worthy of belief, or that it is unreasonable to know that the conduct would be unwelcome.

[181]      Having rejected these myths and stereotypes, I now turn to the overwhelming evidence in this case that supports a finding that the comment was unwelcome. I begin with the Faculty Member. I find that, by his own admission, the Faculty Member knew that his comment was very likely unwelcome. Even before making the comment, he was not sure how his comment as going to be taken so he began with what the Employee remembers, “you will have to let me know if this is a misstep”. The Faculty Member acknowledges that, as soon as he made the comment, he saw that it was unwelcome. He regrets making the comment. He has apologized many times for making the comment.

[182]      The Faculty Member acknowledged in his evidence that it was wrong for him to have made that comment and that it was a serious error of judgment. The Faculty Member acknowledged that his comment contemplated a personal relationship where there was no space for one to grow, without imperiling his marriage and the appropriateness of his professional relationship with the Employee.

[183]       For all of these reasons, I find that the comment was unwelcome.

[184]      This case turns on the third part of the Janzen test. The test in Janzen requires that the conduct gives rise to adverse consequences for the complainant. As described above, these adverse consequences may include endangering continued employment, negatively affecting work performance, or undermining personal dignity. This element in the Janzen test for sexual harassment aligns with the Moore test for sex discrimination which requires, among other things, that the complainant establish an adverse impact in her employment: para. 33. The Pardo factors assist in the Moore analysis.

[185]      A single event may, depending on the facts, be sufficient to constitute discriminatory conduct. However, not every negative incident that is connected to sex will be discriminatory harassment contrary to the Code: Hadzic v. Pizza Hut Canada, [1999] BCHRTD No. 44 at para. 33. There has to be something more than simply showing that the conduct was unwelcome and linked to sex. The Tribunal in Brito v. Affordable Housing Society, 2017 BCHRT 270 stated:

[186]      To decide whether a single incident amounts to sexual harassment within the meaning of the Code, the Tribunal turns to the factors set out in Pardo. In Pardo, the Tribunal noted that all of the circumstances must be taken into account when determining whether a single comment could constitute a contravention of the Code. The Tribunal has identified a non-exhaustive list of relevant factors:

[187]      While subjective feelings are relevant, they are not determinative in this assessment. These circumstances, and the entire context of the situation, must be considered on an objective basis: Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243 [Gaucher], at paras. 60 to 63.

[188]      The Employee testified at length about the tremendous negative impact that the comment, and the Faculty Member’s subsequent conduct, had on her. She gave heartfelt and honest testimony about the range of emotions she was feeling. She felt confused, anguished, anxious, depressed, and angry. She felt like she was put in the impossible situation, and that all the weight of remedying this situation rested on her shoulders. She gave evidence about the tremendous grief she was experiencing from not being able to work at the Faculty. She talked about her high levels of anxiety and how it made it impossible for her to manage other events, including the death of her grandmother and the suicide of her friend. She described crying in her car and crawling under her desk. She clearly experienced a tremendous negative impact.

[189]      From her perspective, the Employee did everything she could to manage the situation and try to get past it but was unable to overcome the damage to her trust in the Faculty Member. From her perspective, the Faculty Member failed to observe her boundaries. She points to an early interaction when the Faculty Member insisted on apologizing even though she did not want to talk about the incident. She also refers to their last business trip when the Faculty Member ended up on the same ferry as her, even though he was very aware that she did not want to travel with him. She believes that he changed his plans to be on the same ferry as her. While I have found that the Faculty Member did not change his plans to be on the same ferry as her, the Employee’s perception of this event sheds some light on the impact of the incident on her. She had lost trust in the Faculty Member. These incidents cemented her view that the Faculty Member did not respect her boundaries or put her needs before his own, even in a simple way.

[190]      The Employee sought counselling and help from her union, who advised her not to come forward until she passed her probation. The union expressed erroneous concerns that she was not entitled to medical leave as a probationary employee. The Employee also says that the union expressed concerns about the ease with which the Faculty Member could find a pretext to fire her on probation. The Employee continued in her position in a state of significant distress until her probation was successfully completed. When she disclosed the incident to Ms. A, she felt a tremendous weight lifted. She testified feeling like she had disclosed a dirty and disgusting secret. The overwhelming evidence is that the Employee experienced an adverse impact.

[191]      In this case, the issue is whether the subjective negative feelings that the Employee experienced are capable of constituting “adverse impact” within the meaning of human rights law. In my view, they are not. Subjective feelings are not enough to prove that harassment has occurred. All circumstances must be considered on an objective basis. I now turn to the Pardo factors to determine whether the conduct is capable of constituting “adverse impact” within the meaning of human rights law.

[192]      In assessing the egregiousness or virulence of the comment, I begin with the words that the Employee heard the Faculty Member say: “you will have to let me know if this is a misstep, but I am crazy about you”. On its face, this comment is not egregious or virulent. It is reasonably understood to be an expression of affection and that is what the words convey. The Employee reported to investigators that this comment was not “vulgar or crude”.

[193]      I acknowledge that the Employee’s experience of the comment has evolved over time. On the night it was made, she described it to her friend as romantic and a misunderstanding. She wrote that the Faculty Member “misunderstood what was between us”. She told Ms. A that the Faculty Member was coming onto her. She told a counsellor that the Faculty Member had made an explicit sexual pass at her. She now describes the comment as a sexual advance that contributed to her experience of sexualized violence in the workplace.

[194]      However, I am unaware of any case law on sexual harassment that gives an example of a comment that is less egregious or virulent than the Faculty Member’s comment to the Employee. The Faculty Member did not proposition her to have sex. He did not comment on her appearance. He did not comment about sexual habits. He did not make any general comments about sex or gender. His comment cannot be reasonably understood as a sexual innuendo, joke, or taunt.

[195]      This case is distinguishable from cases that involve sexualized comments about the body: e.g. Forgues v. Gary Stinka and Moxie’s Restaurant, 2001 BCHRT 7. This case is distinguishable from cases where comments were made about the size of breasts, menstrual cycles, or physical appearance: e.g. Ryane v. Krieger and other, 2000 BCHRT 41; Fiebelkorn v. Poly-Con Industries and other, 2000 BCHRT 54. This case is distinguishable from cases of vulgar or sexual jokes: e.g. Ryane v. Krieger and other, 2000 BCHRT 41; Koblensky v. Westwood and other (No. 2) 2006 BCHRT 281.

[196]      Verbal conduct constituting sexual harassment is not limited to explicit sexual topics or conversations, but can also include hostile, derogatory, and threatening verbal and physical conduct. However, there is no evidence to suggest that the Faculty Member ever made derogatory or hostile comments about gender or sex. This case is distinguishable from cases where intimidating and threatening comments about gender or sex were made: Bilikama obo others v. Khaira Enterprises and others, 2014 BCHRT 107, paras. 272-295, 607-612; Hashimi v. International Crowd Management (No. 2), 2007 BCHRT 66.

[197]      Verbal conduct constituting sexual harassment has also been found where topics of a generalized sexual nature are at issue. However, there is no evidence that the Faculty Member and the Employee engaged in conversations about topics of a generalized sexual nature. This case is distinguishable from cases where there were comments about sexual needs, prior sexual encounters, and a pornographic movie: e.g. Wollstonecroft v. Crellin at al, 2000 BCHRT 37.

[198]      The scope of verbal conduct can also be subtle and occur in hostile and poisoned work environments. Verbal communications that constitute sexual harassment can revolve around overt sexual topics, whether they be sexual invitations, general flirtatious behaviour, sexual topics of conversation, or demeaning or derogatory comments. However, this is not a case where the comment was made in the context of a sexualized workplace atmosphere where sexual jokes were made frequently in an office: Mercier v. DaSilva, 2007 BCHRT 72. These kinds of subtle verbal comments generally require more than a single incident. Often a pattern of behaviour of verbal conduct is required. This case is distinguishable from cases of repeated sexual advances or invitations: Baeza v. Blenz Coffee and Gardner, 2000 BCHRT 29; Simon v. Paul Simpson and Med Gril Ltd. 2001 BCHRT 24; Fougere Rallis and Kalamata Greek Taverna, 2003 BCHRT 23; Soroko v. Dave’s Custom Metal Works and others, 2010 BCHRT 239; McIntosh v. Metro Aluminum Products and another, 2011 BCHRT 34.

[199]      For all these reasons, I find that the comment was not virulent or egregious. This Pardo factor weighs against a finding of discrimination. I now turn to a number of contextual factors to determine whether this comment, considering all of the circumstances in context, rises to the threshold of sexual harassment within the meaning of the Code.

[200]      This Pardo factor weighs in favour of a finding of discrimination. The Employee testified that they had a good working relationship, which from her perspective, made her experience of the comment that much more violating. I now turn to the power dynamics in this relationship. The Employee argues that critical to the context of her case was the power imbalance between her and the Faculty Member which she describes as “very substantial”.

[201]      I find that there was a power imbalance between the Faculty Member and the Employee which flowed from their positions. At the time, the Faculty Member was a tenured professor. The Employee was a probationary employee and a recent hire at the University. She was five months into an eight month probationary period when the Faculty Member made the comment. As a probationary employee, she did not have job security and was vulnerable to the evaluations of supervisors. The Faculty Member was one of her supervisors. She was also a young woman at the beginning of her career working for an older man established in his career.

[202]      However, I find that the power imbalance was not as stark as presented by the Employee for a number of reasons. First, the structure of an organization reveals a lot about its power dynamics. Although every organization needs someone to make decisions, distribute the work, and manage employees, a hierarchical structure with one boss does not empower employees as much as organizations that rely on teams. Team structures give employees two bosses. In this case, the Employee had two supervisors. She reported to Ms. A in the University and the Faculty Member in the Faculty. She met with both of them regularly. The structure of the University was designed to diffuse power imbalances through decentralized reporting relationships.

[203]      Within this decentralized structure, Ms. A had more power than the Faculty Member as a supervisor over the Employee’s probation. During her probation, Ms. A was primarily responsible for all of the human resource aspects of her job. Ms. A testified that she had primary supervisory role for positions like that of the Employee on probation. Her testimony is corroborated by the objective evidence that she was the hiring manager. She took charge in setting salary, setting performance goals, measuring performance on all aspects of the job, identifying corrective measures, and stewarding the probation to a successful completion. Ms. A did this in consultation with the Faculty Member, as well as others, and it was clear that Ms. A ultimately made the recommendation on whether to graduate a probationary employee. Ms. A testified that she spent “much more time” with persons in positions like that of the Employee on probation than after they completed probation. Her flexible supervisory role reflected an organizational structure that shifted power between supervisors depending on the stage of an employee’s career.

[204]      Second, the Employee gained power over time. While the Faculty Member had security of tenure, that did not extent to his other role. The Faculty Member’s success in his other role depended on his ability to perform a duty. Before the Employee was hired, the Faculty Member was not successful in performing this duty or even retaining a person to perform the duties of the Employee. I find, as undisputed facts, that the Faculty Member worked unsuccessfully with two previous professionals and the position had been empty for a number of months. When the Employee was hired, there were a number of significant challenges facing the Faculty involving programs. It is reasonable to conclude that they were in a race against time.

[205]      The Employee gave evidence that, as a consequence, there was pressure on her to get up to speed and become effective in her position very quickly. At the same time, however, there was also pressure on the Faculty Member to succeed because there were a number of jobs and reputations at stake. The Faculty Member gave heartfelt evidence about the burden of this responsibility. Given this context, the Faculty Member needed the Employee in her role, and together, they needed to succeed in their efforts. The Employee provided strong strategic advice and became a trusted advisor to the Faculty Member.

[206]      Third, although they were not equals, in terms of their positions, they corresponded in a manner that reflected a genuine appreciation and respect for each other’s views. This is reflected in their emails. The Faculty Member showed deference to the Employee in these emails. The Employee expressed her opinions even when at odds with the Faculty Member. She openly criticized and counseled him on strategy in a manner that one would expect from colleagues who are in a collaborative working relationship. This is simply not a case where the Employee was saying what she thought the Faculty Member wanted to hear. There is no reliable evidence to support such a conclusion.

[207]      This was also reflected in their meetings. After the comment was made, both the Faculty Member and the Employee acknowledge discussing the power imbalance between them. During that discussion, the Employee remembers saying that they were not equals and she wanted him to recognize that. The Faculty Member remembers acknowledging that he could be more aware of the power imbalances. The Faculty Member never wanted to work in a hierarchical environment. He explained working in another university that was hierarchical and “everyone was invested in that hierarchy”. He saw that hierarchy negatively impact the ability of junior academics to take on leadership roles. In his view, that standing on hierarchy, and reinforcement of hierarchy, was unfortunate and should be worked against. He acknowledged that a power structure exists, but he sought to interact on the basis of equality and quality of individuals. He did not want to throw his weight around. In his current role, he sought to treat people as equals, and in retrospect, acknowledges that the Employee was not, by virtue of her job, in a position of equality.

[208]      While the imbalance of power was not as stark as argued, there were unequal power dynamics. This Pardo factor weighs in favour of discrimination.

[209]      This Pardo factor weighs against a finding of discrimination. The comment was made in the context of a successful day of work. By all accounts, the Faculty Member and the Employee had a great day. They had successful meetings. They made substantial progress in achieving their work-related goals. That is, in fact, what transpired. This day marked a successful culmination of their efforts.

[210]      They went out to dinner, which was normal practice for professionals in their positions. They were genuinely in a celebratory mood, which was evidenced by the facts that they dined for approximately three hours and consumed more alcohol than either of them considered usual. The Faculty Member was feeling the effects of that alcohol, the Employee says that she was not. During that dinner, the Employee remarked that it had been such a great day. She then heard the Faculty Member finish her sentence in a way that she experienced as flirtatious. That is the only comment that the Employee thought crossed the line over the course of that three-hour dinner. The Employee confirmed on cross-examination that the Faculty Member did not make any other prior remarks that day. They continued conversing, dining, and celebrating.

[211]      The main comment, at issue in this complaint, was made on a busy street after dinner. The Faculty Member gave voice to his affection for the Employee by saying words to the effect, “you will have to let me know if this is a misstep but I am crazy about you”. The Faculty Member regrets making this comment, and had he been thinking clearly, he would not have said it. The comment was never repeated, and the balance of this complaint, is about the Faculty Member’s unsuccessful attempts to apologize for his mistake. The Employee experienced his remedial gestures as violations of her boundaries.

[212]      After the comment was made, the Employee and the Faculty Member had a discussion that started on the street and continued in the Faculty Member’s hotel room. It was inevitable that they had to return to the hotel so that the Employee could pick up her bag before staying overnight with her family. Earlier that day, the Employee stored her bag in the Faculty Member’s hotel room rather than in his car. This is what prompted their walk from the restaurant to the hotel. Once they arrived at the hotel, the Faculty Member offered to bring her bag down to the lobby. He also offered to discuss what had happened at the hotel restaurant. The Employee agreed to have their discussion in the hotel room. She found the restaurant too noisy, which increased her anxiety. She wanted to discuss the matter in a quiet place. She expressed that she did not think he was going to jump her, which demonstrated her expectation that the Faculty Member would be making no sexual advances in the hotel room. The hotel room served two functions. It served as a place where the Faculty Member slept at night. It also served as a satellite office where the Faculty Member and the Employee worked during the day. They prepared for meetings together in that hotel room. The Employee also worked there alone when the Faculty Member had to attend meetings without her. She had been given a key to his hotel room for this purpose.

[213]      Their discussion lasted over one hour. They both estimate that it could have been closer to one hour and a half. The Employee expressed her hurt, and the Faculty Member repeatedly apologized. He referred to himself as an idiot and was genuinely seeking to make amends. The Employee observed his face in his hands and that he looked like he was upset with himself.

[214]      The Employee was sitting at the table and the Faculty Member initially stood. The Employee takes issue with the fact that, at some point, the Faculty Member went from standing to sitting to reclining on the bed. The Faculty Member explains that he was tired. There was no physical contact or suggestion that he was making a sexual advance towards her. What happened in that hotel room was a genuine discussion about how to move past the comment which was a mistake. The Faculty Member apologized many times for making the comment, and after she said that she would be distant for a while, he made another mistake by saying that he hoped that she would still smile. She found that comment offensive and patronizing. The Employee eventually ended the conversation.

[215]      At the end of the conversation, the Faculty Member and the Employee walked down to the hotel lobby so that she could catch a taxi back to her family home. Before entering the taxi, the Employee and the Faculty Member hugged to diffuse the tension. Although the Employee took a step towards the Faculty Member, the Employee does not accept that she initiated the hug. She describes feeling compelled to hug him and that the hug happened. She then describes feeling disgusted after their cheeks touched. She believes that the Faculty Member pressed his cheek into hers. In any event, neither of them experienced this hug as a romantic gesture. They both found the hug extremely awkward and understood it as a way to diffuse the tension.

[216]      I do not see this as a case where the Faculty Member is attempting to minimize his conduct. In Tyler v. Robnik and Mobility World (No. 2), 2010 BCHRT 192, the respondent claimed that his offering the complainant his hotel room key was a “joke”. The Tribunal member disagreed and found it difficult to imagine a manager offering his hotel room key to a subordinate female employee as a joke: para. 49. In this case, the Faculty Member acknowledges that the Employee was offered and given a key to his hotel room. The evidence is undisputed that the Employee used that key to access the hotel room to work in between meetings. The hotel room served as a satellite office during their business trips. The evidence is undisputed that the Faculty Member made no sexual advances to the Employee in the hotel room. No such advances can be reasonably inferred from the evidence. Given that the Faculty Member readily admitted facts that were adverse to his interests, providing an explanation for the hotel key cannot reasonably be understood as minimizing his conduct. This fact does not support a finding that he was making a sexual advance towards her.

[217]       This case is distinguishable from Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 [Eva] where a single sexual advance was found sufficient to constitute sexual harassment. In Eva, the complainant’s supervisor booked a single hotel room for the two of them to share while on a business trip. The Tribunal found that he did so for sexual purposes. The complainant rebuked his sexual advance, and although she did not experience any further advances or incidents, she was vulnerable at the time because she was in a foreign country where she did not speak the language and could not easily escape the situation. In this case, based on his words and this context, the Faculty Member’s comment cannot reasonably amount to a sexual advance. I distinguish Eva on the grounds that the comment was not a sexual advance, took place on a busy street, the Employee was in a familiar city, and spending the night with her family.

[218]      For all these reasons, the context in which the comment was made is a Pardo factor that weighs against a finding of discrimination.

[219]      This Pardo factor weighs against a finding of discrimination. Apologies mitigate against a finding of discrimination because they are behaviour that the Tribunal is trying to encourage: Code, s. 3.

[220]      I find that the Faculty Member repeatedly expressed genuine and sincere apologies to the Employee. He apologized to the Employee immediately after the comment was made. He apologized that evening. He apologized the following week, the following month, and several months later in his written response to her complaint to the University. As soon as he made the comment, the Faculty Member recognized the harm that he had caused to the Employee. He was taken aback by how deeply she was hurt. I accept his evidence that he was doing his best to find some way to make it better. He did this through both words and actions. He accepted responsibility for making the comment. He made admissions in his evidence that go against his interests. He acknowledges that his comment was unwelcome. He acknowledges that he gave voice to something that he should have never given voice to. He acknowledges that he exercised poor judgment. He sincerely regrets making the comment. He explains how the comment came about and attributes his poor judgment to his guard being down after alcohol and a long day of work and travel. He repeatedly expressed his sincere regret and was seeking to take steps to remedy the problem that he acknowledges causing.

[221]      Objectively, an immediate apology will reduce the harm. Here, the Faculty Member’s immediate apologies had a remedial impact on how the Employee felt that evening. This was evident in her text messages to her friend. The Employee acknowledges that some of his apologies made the situation better, but did not fully redress her negative feelings about the breach of trust. Her evidence is that her trust in him was further damaged the following week by his unwillingness to respect her boundaries in talking about the incident when she did not want to and dropping by her office when she needed space from him.

[222]      However, I do not accept her evidence that the Faculty Member was not respecting her boundaries. The Faculty Member was genuinely trying to respect her boundaries. The day after the comment was made, he asked her whether she wanted to discuss what happened. She declined, so no discussion occurred. Regarding the two incidents the following week, I accept that the Faculty Member expressed an apology that the Employee found unwelcome because she did not want to talk about the comment. The Faculty Member said words to the effect that he felt as though he had lost her respect and wanted to earn it back. However, I do not accept that the Faculty Member barged into her office notwithstanding that the Employee experienced it that way.

[223]      More importantly, the Employee acknowledges that things improved the following month. The following month, the Employee did want to talk. After another scheduled meeting with the Faculty Member, she initiated a conversation about the comment that lasted over a period of three days. The Faculty Member and the Employee had a series of meetings in which they discussed the comment and their working relationship moving forward. The Faculty Member again apologized during these meetings. The Faculty Member and the Employee testified that these meetings “cleared the air” to some extent and they were able to work together more easily after these meetings. The Employee acknowledges feeling better for some time. She felt that the week was better than the week before, because there was some acknowledgement of her hurt.

[224]      The Employee acknowledges that some of the Faculty Member’s apologies made the situation better, but did not fully redress her negative feelings about the breach of trust. The Employee acknowledges that the Faculty Member apologized for his conduct but did not go far enough because, from her perspective, there was no full recognition for the implications of that conduct. She takes issue with how he expressed his regret. For example, she does not remember the Faculty Member ever saying the words “I am sorry” on the evening the comment was made. She acknowledges his concern and upset, but perceived his physical gestures as self-centered.

[225]      For her, his promises of a professional relationship in the future also did not go far enough. She testified that the Faculty Member destroyed her trust in him because, in making that comment, he had behaved so far outside the reasonable boundaries of their professional working relationship. For her, that trust could not be instantly rebuilt on his promise to behave appropriately in the future. The Employee wanted to hold the Faculty Member accountable. She wanted the Faculty Member to admit that he sexually harassed her and apologize for the implications of that misconduct. In my view, the Employee imposed an impossibly high standard on what would constitute an apology. She was expecting the Faculty Member to admit liability for something that he genuinely believes he did not do.

[226]      Given that the Faculty Member repeatedly and genuinely apologized, and that some of these apologies reduced the harm caused by his comment, this factor militates against a finding of discrimination. That the Faculty Member did not go far enough in his apologies for the Employee is not a factor that detracts from my finding.

[227]      This Pardo factor weighs in favour of a finding of discrimination. Historically, women have been subject to sexual harassment in the workplace. This goes to the issue of vulnerability. As stated in Janzen, “one characteristic that victims usually share in common is their vulnerability to economic sanctions both real and threatened”: p. 1285

[228]      The Employee was vulnerable for a number of reasons. As a woman, she is vulnerable because she is a member of a group historically discriminated against. As a probationary employee, she is vulnerable because she does not have job security. As a young woman, she is vulnerable to an unwelcome comment from an older male supervisor because of that power imbalance. These are all indicia of vulnerability that weigh in favour of a finding of sexual harassment.

[229]      The Employee also felt vulnerable because of her past experiences. She gave evidence about past experiences where she was exposed to inappropriate sexual attention. Her evidence was that she is cautious in circumstances where such attention may arise, and aware of steps that she can take to manage the risk of that attention. As a consequence of having had her boundaries crossed before, she gave evidence about her awareness of establishing appropriate boundaries and when her boundaries were crossed. She fully trusted that her relationship with the Faculty Member was purely professional, and she did not consider this to be a relationship where she had to be wary.

[230]      The evidence is undisputed that the Employee did not experience any real economic sanctions during her probation. She passed her probation without incident. At issue, in this case, is whether she was vulnerable to any threatened economic sanctions from the Faculty Member. While the Faculty Member did not actually threaten the Employee, I find that she had a reasonable belief that the Faculty Member could influence the outcome of her probation.

[231]      I find that the Faculty Member did not threaten economic sanctions against the Employee and no such threats can be reasonably inferred from the evidence. The evidence is undisputed on this point. The Employee does not allege there was any attempt by the Faculty Member to take action to terminate her employment at any point during her probation. She acknowledges that, after the comment, they discussed how to move forward with their professional relationship. Although she experienced some of these interactions as violating her boundaries, the objective evidence is that these interactions were entirely remedial in nature.

[232]      The Faculty Member consistently gave the Employee positive feedback on her performance throughout her probation. She acknowledges consistently receiving positive feedback from him. What the Faculty Member communicated to the Employee is consistent with what he communicated to Ms. A. Ms. A’s evidence was that the Faculty Member was very pleased with her performance throughout her probation. She formed this view based on consistent feedback that she received from him, both in person, and by email. This feedback was also communicated to Ms. A’s supervisor.

[233]      I find that the Employee had a reasonable belief that she was vulnerable to the threat of economic sanctions from the Faculty Member during her probation. This is evidenced in the Faculty Member’s influence over the decisions that Ms. A ultimately made about her probation. Before turning to this issue, I make two observations.

[234]      First, the Faculty Member’s influence was not as stark as presented by the Employee. I reject the argument that the Faculty Member had the power to unilaterally terminate her employment. The Employee’s fear, while genuinely held, was not reasonable.

[235]      Some of the Employee’s fears appear to have been stoked by her union. Although her union would have known that the Faculty Member could not unilaterally terminate her employment, she reports that her union advised her not to report the comment until after her probation because of this kind of risk. However, she did not express this fear at the time of the events. In her text messages to her friends, the Employee never expressed any fear of being fired by the Faculty Member, or even, at all. Rather, she shared with them that she was unhappy at the University and had issues with her other supervisor, Ms. A, and that it was the Faculty Member who was one reason why she wanted to stay.

[236]      I find, as an undisputed fact, that the Faculty Member could not unilaterally terminate the Employee’s employment. Ms. A testified that it was a joint decision that involved a lot of people. To begin with, it involved consultation between both supervisors. Ms. A would then have to consult with her supervisor and human resources. As this is a unionized position, she would also have to bring it before the employee’s union. That was the process for probation extensions or dismissals. The Employee was in a position to know this. Ms. A testified that this information would have been relayed to the Employee during her orientation. The Employee had indicated that she had read the collective agreement and the University’s policies at the outset of her employment.  

[237]      Second, I do not accept the Employee’s evidence that the success of her probation depended on achieving the metrics that were set out in her probation form. The Employee’s evidence was that meeting these metrics depended on her working closely with the Faculty Member, and that this was a source of significant concern for her after the comment.

[238]      However, her subjective belief is not supported by the objective evidence. The objective evidence is that these performance measures were aspirational. The Employee acknowledges setting some of these expectations in consultation with Ms. A who confirmed that the metrics were aspirational. Ms. A met with the Employee at the outset of her employment to decide what metrics to use during her probation, and throughout their meetings, the Employee provided input on her performance, and at times, disagreed with Ms. A’s assessments of her performance.

[239]      The Employee argues that she was vulnerable in the metrics because certain tasks were largely in the control of the Faculty Member. She seems to suggest that the Faculty Member could withhold these tasks to hurt her performance reviews. That never occurred. Ms. A testified that the Faculty Member’s evaluations were always very positive of the Employee and consistently positive throughout the duration of her probation. That she did not attain some of these metrics was immaterial.

[240]      I accept that the Employee genuinely feared that she would not pass her probation. She felt particularly fearful for her job after the Faculty Member told her that he was crazy about her. Even after their restorative meetings, she feared that the Faculty Member could still take action against her for being too bold during these meetings. She testified feeling extremely vulnerable.

[241]      I now turn to the reasons for my finding that the Employee had a reasonable belief that the Faculty Member could influence the outcome of her probation.

[242]      First, this is evident by what was happening behind the scenes. The Employee did not know this at the time, but Ms. A was considering extending her probation because of her concerns with the Employee’s communication skills. Ms. A recommended that the Employee start some courses with human resources to begin corrective procedures. Ms. A wanted the Employee to start these courses around her six-month review, but they had not yet been started as they approached her final eight-month review. Ms. A had never informed the Employee that she was considering extending her probation. All the Employee knew at that time was that Ms. A had constructive feedback for her and suggested training around communication.

[243]      Although the Employee completed probation on time, behind the scenes the Faculty Member and Ms. A disagreed on whether to extend her probation. Ms. A recommended extending the Employee’s probation. The Faculty Member advocated for the Employee to pass probation. Their disagreement reflected the Employee’s actual performance. The objective evidence demonstrates that the Employee excelled in her role at the Faculty, but she had some conflict with colleagues at the University. Ms. A consulted with her supervisor and human resources. After these consultations, she agreed to complete the probation process for the Employee. She administered this together with the Faculty Member.

[244]      Second, the Employee gave evidence that the success of her probation depended on winning the confidence of the Faculty Member whom she understood to be difficult to work for. The Employee testified that the Faculty Member’s history with prior incumbents reasonably convinced her that success in her position required her to closely track and meet his needs and desires. When the Employee was hired, the position had been empty for a number of months. The Employee heard through gossip that the previous professionals had been terminated during her probation and that another professional had left for a different position in the University because of a conflict with the Faculty Member after successfully serving under his predecessor. The Employee testified to her belief that her success on probation required her to win the confidence of the Faculty Member.

[245]      The Employee assumed that the Faculty Member was responsible for these departures, but this assumption is wrong. Although Ms. A was primarily responsible for those departures, it is evident that the Faculty Member had some influence over her decisions. There were two people in the position prior to the Employee. The first was a full-time employee who Ms. A recommended be transferred because she did not believe they would have a productive working relationship. Ms. A testified that this was not unusual. After her departure, Ms. A hired another professional who did not pass her probation. Ms. A testified that this decision was made on her recommendation because of a number of incidents. Ms. A did not have confidence in this employee’s judgment. After this probationary employee was dismissed, the position was open for some time.

[246]      For all these reasons, the Employee’s vulnerability is a Pardo factor that supports a finding of discrimination.

[247]      I find that the unwelcome conduct of a sexual nature does not rise to the level of harm that is protected under the Code. The issue is whether the comment resulted in a discriminatory impact on the Employee where I have found that the Faculty Member did not engage in predatory behaviour or overstep boundaries in the workplace, apart from the comment. I find that the adverse impact related to sex resulted from a mistake. The Faculty Member acknowledges that his comment was a mistake, and he has been trying to atone for that mistake ever since. He has made repeated and sincere apologies and good faith remedial efforts that undid some of the harm to the point where it does not rise to the level of harm that is protected under the Code.

[248]      The Employee says that the comment was an affront to her dignity. She gave evidence about the tremendous negative impact that she experienced after the comment was made. While subjective feelings are relevant, they are not determinative. The circumstances and the entire context of the situation must be considered on an objective basis. The Pardo factors are meant to determine if the adverse effect in a protected sphere rises to the level of discrimination under the Code. Applying the Pardo factors to the Moore analysis, and considering all of the circumstances of this case, I find that the Faculty Member’s conduct does not pass the threshold of sexual harassment under the Code.

[249]      There is a large gap between a comment that is inappropriate, and deserving of an apology, and one that is inherently such an affront to the person’s dignity that it rises to the level of sexual harassment as defined by the Code. In this case, the Faculty Member’s comment was not egregious or virulent. It does not, on its own, communicate a message that the Employee is less worthy of respect or dignity because of her sex: Cai v. Terrapure Environmental and another, 2019 BCHRT 51, para. 36. The comment happened on only one occasion in the context of a celebratory dinner after a successful day of work. The Faculty Member has repeatedly and genuinely apologized for the comment. He has taken a number of remedial steps, some of which have reduced the harm that the Employee was experiencing. For the Employee, they did not go far enough to restore the trust that was broken.

[250]      I pause, here, to acknowledge that the Employee is vulnerable. Her vulnerability flows from the power imbalances and her membership in a group historically discriminated against. These Pardo factors do not tip the balance for the following reasons.

[251]      The Faculty Member did not abuse his power over the Employee. I observe that sexual harassment is ultimately about an abuse of power: Janzen; Al-Musawi v. One Globe Education Services, 2018 BCHRT 94, para. 33; Eva, para. 75.

[252]      I reject the Employee’s evidence that the Faculty Member abused his power. As I understand her evidence, the Employee points to being in a relationship of unequal power. She argues that the Faculty Member abused that power in expressing a romantic interest in her. She argues that he had a responsibility to consider the power imbalances before making any such disclosure. He ought to have known that such a disclosure was inappropriate and potentially very damaging to her. For her, the pivotal moment was the comment. She regards the comment as a breach of trust. She refers to a number of incidents before the comment that she believes were efforts by the Faculty Member to groom her into a sexual relationship. She refers to a number of incidents after the comment that she believes illustrate the Faculty Member’s lack of respect for her boundaries. I have found that the Faculty Member did not engage in predatory behaviour or overstep boundaries in the workplace, apart from the comment. As stated by the Tribunal in Gaucher:

[253]      The objective evidence shows that the Faculty Member used his power to support the Employee both before and after the comment was made. Before the comment, his efforts at empowerment were welcomed. After the comment was made, they were rebuffed. In any event, the Faculty Member’s empowerment of the Employee was a remedial measure that reduced some of the harm that she was experiencing.

[254]      Consider their office meetings. The Employee and the Faculty Member met at least weekly. Before the comment was made, the Employee testified feeling empowered by these meetings. At the start of her probation, she would ask his assistant to fit her into a meeting. As time went on, she contacted him directly, and he started to stop into her office, as needed. She considered this a sign that she was doing her job well because he was motivated and onboard with strategies. In this regard, the Employee welcomed these drop-by meetings. After the comment was made, the Employee did not want the Faculty Member to drop by her office. When he did drop by her office, and even after he knocked on her door, she experienced that as a violation of her boundary. She considered it another example of his predatory behaviour.

[255]      Consider the Faculty Member’s positive feedback about the Employee’s skills and abilities. Before the comment was made, his feedback empowered the Employee. She expressed gratitude for his mentoring and positive feedback. The Faculty Member testified that everything he had said to the Employee about her qualities was meant sincerely and was consistent with what he was saying to Ms. A privately. The Faculty Member testified that the comments he made about her potential future career, and what he thought of her abilities were, and what kinds of roles those could lead to, were meant sincerely. She has those abilities and qualities. He was simply encouraging her, as he had done many times before. After the comment was made, she experienced his feedback as another example of his predatory behaviour.

[256]      The Faculty Member explained trying to interact with the Employee in the same professional manner as before. He explained trying to return to the strong and collaborative working relationship that they had. His feedback about her performance was consistently positive throughout her probation. After the comment was made, he used his power to engage in good faith remedial efforts that undid some of the harm that she was experiencing. This was evident in their April meetings. The Faculty Member was using his power to restore their professional relationship. This was also evident in his discussions with Ms. A. The objective evidence shows that his consistent and positive feedback on her performance influenced Ms. A’s decision to pass her probation.

[257]      It was a normal work environment both before and after the comment. There was one incident in the entire time they worked together. On these bases, I cannot conclude that this comment rises to the threshold of sexual harassment contrary to s. 13 of the Code.

[258]      The comment was investigated by the University. The Faculty Member testified that he was disciplined for making the comment. The Employee takes issue with the University’s investigation. She does not believe that the Faculty Member was disciplined, or whatever happened to him went far enough to hold him accountable for what he did to her. It is to these issues that I now turn.

[259]      The Employee argues that, even if the facts of this case do not support a finding of sexual harassment, the facts of this case clearly support a finding of sex discrimination. She says that it is only necessary for her to show that she has experienced an adverse impact in her employment that is related to her sex.

[260]      The complaint that is before me is a complaint of sexual harassment, and I am bound to apply the test for sexual harassment that has been set out in Janzen. I acknowledge that the Employee believes that the Janzen test is too restrictive. This was evident in her complaint about the University’s investigation, which I address below.

[261]      I am unable to replace the Janzen test with the Moore test in these circumstances when deciding a complaint of sexual harassment, and it would be inappropriate to do so. In essence, what I am being asked to do is determine whether the test for sexual harassment in Janzen remains good law in light of the more recent test for sex discrimination in Moore.

[262]      A similar issue was raised in Envirocon Environmental Services ULC v. Suen, 2019 BCCA 46 [Suen] where the court of appeal considered whether the test for family status discrimination that was set out in Campbell River Heath Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260, [Campbell River] remains good law in light of Moore. The court of appeal upheld Campbell River as the test for family status discrimination: paras. 21 to 25. The Tribunal must follow the decisions of appellate courts, and if they establish a specific test for a distinct type of discrimination, the Tribunal must follow what they say until they say otherwise.

[263]      For all these reasons, the Janzen test is a full answer to the facts in this case as they relate to the Faculty Member.

[264]      The Employee advances two arguments against the University. She says that the University is vicariously liable for the Faculty Member’s sexual harassment. She also says that the University is liable for sex discrimination in how it responded to her allegations. The University takes issue with the second argument that is being advanced by the Employee.

[265]      A dispute arose over the scope of the complaint against the University. The University argues that I am unfairly expanding the scope of this complaint by permitting the Employee to advance arguments in the hearing that she did not advance in her original human rights complaint.

[266]      The University rightly points out that the complaint does not assert that its policies or investigation were discriminatory. However, this is because the Employee’s human rights complaint was filed before the University completed its investigation. As a result, her human rights complaint does not expressly allege that the University’s response to her internal complaint of sexual harassment was discriminatory. These arguments were advanced during the hearing and evidence was adduced at that time.

[267]      Given that the evidence was fully canvassed during this hearing, I did not consider it unfair for the University to defend against these allegations in final submissions. To ensure procedural fairness, I requested additional written submissions on this issue. I am satisfied that the parties had a meaningful opportunity to address all of the issues that I have to decide in this hearing. I now turn to those issues.

[268]      This part of the Employee’s complaint against the University is founded on an employer being vicariously liable for the discriminatory acts of its employee: Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84. Given my finding that the Faculty Member’s conduct was not discriminatory, I dismiss this aspect of the complaint.

[269]      The focus of my analysis is on whether the University is liable for sex discrimination in how it responded to the Employee’s allegations against the Faculty Member. The Employee says that the response was wholly deficient and discriminatory. The University says that its response was exemplary. Before addressing the facts, I must first address a legal issue that arose between the parties. The parties dispute whether liability can attach to an employer in the absence of a finding of discrimination.

[270]      The University argues that no liability can flow to an employer for conducting a poor investigation in the absence of a finding of discrimination under the Code. The University refers to Jurado v. JW Research and another (No. 2) 2019 BCHRT 39 [Jurado] where the Tribunal refused to do so. The Employee cited a number of cases in support of her position that liability can and does flow in such circumstances. The University argues that the other cases cited by the Employee discuss liability for a poor investigation in response to a finding of discriminatory conduct or in the context of a preliminary application. The University argues that there are no decisions rendered in the context of s. 37(1) of the Code which have concluded that a remedy may flow to a complainant in the absence of a finding of discrimination.

[271]      I acknowledge the University’s argument that the case law on this issue is sparse. In Jurado, which was a decision after a hearing on the merits of a complaint, the Tribunal considered allegations relating to a poor investigation of internal complaints, even though it had dismissed the underlying conduct allegations. The Tribunal found that the poor investigation did not give rise to liability. Jurado is distinguishable on the facts. On the facts of that case, the Tribunal did not find that the investigation was poor because of the complainant’s personal characteristics.

[272]      The Employee raises the issue of whether Jurado applied too high a standard of causation. She argues that the Tribunal in Jurado used a “because of” standard of causation rather than “a factor” standard of causation. As a result, she argues that Jurado did not address whether a poor investigation of complaints relating to personal characteristics might have a particularly negative impact on a complainant with those characteristics such that it could amount to a form of discrimination. It is not necessary to decide whether the appropriate standard of causation was applied. I am satisfied that Jurado stands for the legal proposition that an investigation in response to a complaint can, on its own, amount to discrimination regardless of whether the underlying conduct subject to the investigation is found to be discriminatory: Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, paras. 52-53; applied in Beharrell v. EVL Nursery Ltd., 2018 BCHRT 62, para. 21.

[273]      The failure to investigate a complaint of discrimination can independently cause harm, and therefore, can independently be a discriminatory breach under the Code. It is for these reasons that a complaint of failure to respond can proceed on its own merits even if the underlying complaint which gave rise to the duty is found to be unproven. An employer’s liability flows from its own obligations to respond appropriately to complaints that arise between its employees. An employer has an obligation to have a discrimination-free work environment. In general, this requires that appropriate policies and procedures are in place, and that an employer respond appropriately to complaints, whether or not a complainant is ultimately able to establish the underlying allegations of inappropriate conduct.

[274]      At issue is whether the University discriminated against the Employee on the basis of her sex through deficiencies in its investigation into her allegations of sexual harassment against the Faculty Member. A separate assessment of the actions of the University is required to assess whether its response was discriminatory in these circumstances.

[275]      The Employee argues that the University’s response as a whole was deficient, and not simply its investigation, and that this was discriminatory on the basis of her sex. She argues that, because the issue involved a prominent member of the University community, the University made excuses and subverted an investigation by overly narrow mandates and did not apply or recognize the actual breadth of the protections of the law. She argues that the University in essence whitewashed the sexual misconduct of a valued employee. She takes issue with the scope of the investigation, the choice of external investigators, and how she was treated throughout this process.

[276]      In my view, nothing turns on the fact that the Employee reported the incident to Ms. A approximately three months after it had occurred. The Employee testified that she delayed advising the University on the advice of her union to the effect that if she complained while still a probationary employee the union could not protect her. Her evidence is corroborated by her written complaint provided to investigators assigned to investigate her complaint against the Faculty Member. In her complaint, she asserts that her union advised her, among other things, that if she reported her complaint to the University during her probationary period she would not have access to paid leave. The Employee testified that she understood during her probation period that she would only have access to 1.5 days of paid sick leave per month of her employment but that on passing probation, this rose to six month’s paid leave. The Employee waited until passing probation to bring her complaint to Ms. A’s attention. Ms. A testified that she shared with the Employee that this was “bad advice” and that it was really unfortunate that the Employee had not shared this information with her earlier.

[277]      There is no dispute that Ms. A did not know about the comment before June. I find that she also had no reason to know about the comment. Ms. A testified that there was no time during the Employee’s probationary period where she was aware that the Employee was experiencing conflict with the Faculty Member. This is consistent with the Employee’s evidence that she kept up professional appearances. Her emails with the Faculty Member over this time period demonstrate professional communications. Ms. A testified that the Employee spoke highly of the Faculty Member throughout her probationary period, while at the same time, often spoke negatively about her co-workers. Ms. A testified that the Employee has also raised concerns about her during their meetings. This left Ms. A with the wrong impression, but a reasonable one at the time, that the Employee was forthcoming with her concerns about work colleagues and supervisors.

[278]      In my view, nothing turns on the fact that the Faculty Member did not report his comment to the University. The Faculty Member did not have a legal duty to report the March 3, 2016 incident to the University. Doing so would not be consistent with a survivor-centred approach which empowers complainants to decide whether to report a claim. The Employee clearly decided not to report the incident until after she successfully completed her probation. Furthermore, both of them were making genuine efforts to resolve the incident between themselves. The Faculty Member and the Employee both testified that the April meetings cleared some air between them. The Employee testified that she was proud of her boldness during these meetings. She acknowledges feeling better after these meetings, at least for some time. She acknowledges that, although she was not feeling okay on the inside, she maintained a professional working relationship on the outside. She advised the Faculty Member that she was taking time off work for vacation, the death of her grandmother, and the suicide of her friend. In these circumstances, although the matter was not resolved, there was no reason for the Faculty Member to believe that the Employee was unable to continue working with him over these months.

[279]      I find that, as soon as the Employee reported the incident to Ms. A, all appropriate steps were taken by Ms. A to advance her concerns. Ms. A expressed her view that the union gave the Employee very bad advice and was sorry that she did not come to her earlier. She provided information to support the Employee. She advised the Employee how to access her leave benefits. She reassured the Employee that she would not have to work under the Faculty Member upon her return from leave. She respected the Employee’s wishes that the Faculty Member not be notified about her leave until she had a chance to collect her belongings. Ms. A immediately reported the matter to her own supervisor as well as to human resources.

[280]      Shortly after reporting her concerns to Ms. A, the Employee was asked for her input as to whether the Faculty Member should be removed from campus during the investigation. She confirmed her preference that he remain on campus.

[281]      The Employee argues that Ms. A had a duty around June 2016 to report the Employee’s injury to WorkSafe. I accept the University’s argument that this allegation falls outside the scope of this complaint. Nevertheless, I address it briefly because it was advanced during this hearing. Based on the arguments and evidence, I find that Ms. A’s actions do not give rise to a violation of the Code. These allegations are unfounded based on the following undisputed evidence. The Employee remained at work for three months following the incident which was the subject of her complaint during which she continued to work productively. The medical note she provided to Ms. A in June 2016 indicated that she needed time off due to stress. There is no serious dispute between the parties that WorkSafe does not compensate employees who experience stress. By being placed on medical leave, Ms. A received a larger benefit than she would have received from WorkSafe as she experienced no loss of pay or benefits. In all these circumstances, I accept the University’s argument that this is a WorkSafe issue and does not give rise to a violation under the Code.

[282]      Ms. B, the human resource consultant, was assigned to this matter. She promptly contacted the Employee’s union to schedule two meetings, one with herself and one with a representative of the University’s equality and human rights office so that the Employee could understand the options and resources available to her.

[283]      During these meetings, the Employee was given information about choices available to her to advance her allegations against the Faculty Member. She had three choices at the University. She could pursue an informal complaint through the equity and human rights office, pursue a formal complaint under the Policy, or pursue the matter as a grievance with the assistance of her union. She could also pursue her claim externally through a human rights complaint.

[284]      The Employee initially chose to pursue a grievance. She advised Ms. B that at least one of her reasons for doing so was because she did not want to be directly involved. The Employee testified that she wanted the Faculty Member to be held accountable for what he did so she was going to pursue the matter. She explained that none of the options at that point really seemed great, but pursuing a grievance was the one that made her the least uncomfortable. She testified that her hope was for some sort of resolution and accountability. She had never done anything like this, so she really did not know what any of it could lead to. She just knew that what happened to her was wrong and should not happen in the workplace.

[285]      Once she chose to pursue a grievance, her union became her exclusive representative and had carriage of the matter. It was no longer appropriate for Ms. B to address the matter directly with the Employee, nor was it appropriate for her to offer benefits to the Employee not contemplated by the collective agreement. Any discussion regarding the terms and conditions of her employment were required to be with the union.

[286]      The Employee testified that Ms. B was “hostile” in a meeting she attended with her union representative because Ms. B discussed the rights of the accused in an investigation process. The Employee remembers her union representative asking about her rights. She remembers Ms. B saying something along the lines of the University would not be contesting her medical leave. The Employee testified that her words really stuck with her. The Employee found Ms. B’s words so hostile and aggressive and they really made her break a little bit more. After they left the meeting, the Employee remembers breaking down and crying. She felt intense numbness come over her.

[287]      Ms. B testified that she made these comments in response to questions from the Employee and her union representative and that she did so to ensure that the Employee understood the process. The Employee acknowledged on cross-examination that any questions she raised with representatives of the University about the investigation were answered promptly and this is confirmed by the documentary evidence in this proceeding.

[288]      The Employee takes issue with the fact that there was no single person assigned to ensure her interests were met, and that this was a deficiency in the investigation, because it was not trauma-informed. I do not accept this argument. The Employee chose to pursue a grievance. As a result of that choice, it was the role of her union representative to ensure that her interests were met. Had the Employee chosen to proceed with either an informal or formal complaint through the equity and human rights office, she would have continued to work with a representative of that office as the “single point of contact”.

[289]      The Employee argues that the investigation was deficient because the scope of the investigation was too narrow. She argues that the policy language was too restrictive because it did not reflect the expansive definition of sex discrimination reflected in her grievance and under the Code.

[290]      I find that the investigation mandate reflected the grievance filed by the Employee, which states:

[291]       The grievance clearly alleges sexual harassment. At no time did the Employee’s union articulate that the investigation should also address sex discrimination as distinct from sexual harassment and that is not how the grievance was framed. Since the allegation is sexual harassment, it was appropriate for the University to follow its Discrimination and Harassment Policy [the policy]. The policy defines “sexual harassment” as:

[292]      Since the policy language reflects the Janzen test for sexual harassment, the policy captures the definition of sexual harassment under the Code. There is no dispute that the external investigators retained by the University applied this policy to their investigation. Since they applied the same test for sexual harassment under the policy as under the Code, I find that the policy was not unduly restrictive or discriminatory.

[293]      The Employee testified that she had made clear that she required a female investigator to investigate her complaint. She advised her union and the equity and human rights office that she preferred a female investigator. However, those conversations would have been in confidence. That message was not relayed to the executive at the University who, at the time, was ultimately responsible for the selection of a male investigator.

[294]      The Employee testified that she told Ms. A, Ms. B, and the equity and human rights office that she just hopes it is not a male investigator.

[295]      The Employee believed that Ms. A and Ms. B were aware of her request. Ms. A and Ms. B have no recollection of that issue arising in their discussions prior to the appointment of a male investigator. The Employee remembers thinking that she did not want a male investigator appointed but it is not clear whether she expressed this to Ms. A at the time. The Employee’s union representative summarized the meeting with Ms. B, and her notes do not reflect a suggestion that a female investigator was discussed.

[296]      Ms. C, a senior professional at the University, testified that before an investigator is appointed, the parties may be consulted to ensure there is no conflict of interest, but not for the purpose of assessing who the parties would prefer as an investigator. In this case, the Employee was not consulted before the appointment was made.  

[297]      The Employee was horrified with this decision because she genuinely believed that her allegations would not be taken seriously. For her, this decision “really set a bad tone”. The Employee did not feel like the University was being honest or honourable with her. She did not know how they could have hired someone of the exact same background and position of power, a white man, of the same age demographic to do the investigation. She explained that she did not feel comfortable discussing these issues with a male. She felt that she was in a position where, even though she had chosen to come forward, she did not have any control on the process. She did not feel comfortable recounting everything that happened to a male. Given her experience with the Faculty Member, she did not feel comfortable trusting another male.

[298]      As soon as the Employee raised her preference for a female investigator with the University executive, a female investigator was co-appointed.

[299]      The Employee testified that the investigation interviews were really hard. She was revisiting incidents at a time in her life that was very difficult and stressful. She explained that the investigators had very different styles. She felt comfortable with the female investigator but uncomfortable with the male investigator because of what she described as his lightheartedness.

[300]      She remembers two incidents of concern. First, she remembered him laughing at her when she recounted the hug. The Employee described the feeling of the Faculty Member’s cheek against hers as “old man skin”. She remembers the male investigator laughing and asking her whether she thought he had old man skin. That upset and disturbed her. She remembers the female investigator acknowledging that this was a really traumatic experience for her. Second, the Employee recounted the practice of going up to the hotel rooms. She remembers that the male investigator interrupted her and said that he just wanted to give her some advice that she never has to go up to a man’s hotel room if she does not want to. The Employee was frustrated and hurt because the male investigator did not appreciate the power dynamics. She explained that, in normal situations, she knows how to handle that situation, but found it really hard when working with her boss. The Employee found the investigation really upsetting for her because she really did not trust the male investigator and was hurt by his actions. It validated her fears that he felt more kinship to the Faculty Member than to her.

[301]      Other than the comments made by the male investigator in the course of the investigation, which were insensitive, the Employee has not suggested that the investigation process was flawed or biased. She did not take issue with the female investigator and acknowledges that they were both tasked with investigating her allegations. Although she disagrees with the mandate provided to the investigators and the conclusion drawn by the investigators, there is no objective evidence to suggest that she did not have a full opportunity to state her case. While the choice of the male investigator may have been a mistake, that mistake was ameliorated with the appointment of a female investigator. In these circumstances, I am unable to conclude that the investigation was discriminatory.

[302]      The University disagrees with the Employee that its decision to retain and pay the fees of an independent third party investigator is objectionable. This is what is mandated by human rights principles. No reasonable alternative was proposed by the union at the time or by counsel during this hearing.

[303]      The Employee took issue with the length of the investigation. The investigation took approximately six months, which was long. The University acknowledges that it did not contemplate that it would take as long as six months to complete the investigation.

[304]      The Employee testified that the length of the investigation was traumatic for her. She gave evidence about not being able to go to the University because it was not a safe environment for her. By the end of the six months, she was not sure if she would be continuing on salary. She testified that the University took so long on every step, and there was not much consideration to the fact that she was using her sick time. She could not believe that they took one month to redact very minimal sentences from the investigation report. The Employee testified that the University was not being honourable. She found the actions of the University to be quite hostile and aggressive and undermined her experience and sense of dignity and integrity.

[305]      In my view, this is an example where the Employee viewed all subsequent interactions with the University in a negative light because of how she personally experienced the interaction with the Faculty Member and what followed from that. This was demonstrated through her willingness to find fault in the University’s clear and consistent efforts to support her. The delays in this investigation were reasonable in the circumstances. The Employee had a role in some of these delays.

[306]      For example, The Employee attributes the delays in the investigation to the University but does not acknowledge her role in some of the delay. The delays were due to a number of factors. The Employee took two weeks to decide which process she wanted to pursue. An investigator was appointed two weeks later on July 6, 2016. The Employee filed her formal complaint on August 12, 2016 despite the fact that she had begun preparing her complaint in March 2016, she sought legal counsel, she was represented by her union, and she accessed the resources of the equity and human rights office to prepare and submit her complaint. In an email to the equity and human rights manager on July 6, 2016, she wrote: “I also don’t appreciate them asking me to do this in a timely manner. I will do it when I am ready”.

[307]      On August 10, 2016, the equity and human rights office emailed her with comments on one of her drafts. In the email, the support person wrote, “hope this reaches you in time and hope you are continuing to take special care of yourself and allowing others to care for you to. I think of you often and send you my best wishes”. That office is part of the University.

[308]      The Faculty Member’s response was filed approximately two weeks later on August 31, 2016.

[309]      There were also planned holidays. The Employee acknowledged taking a three week cycling holiday in late August or early September. The investigators also had planned holidays around this time period. After interviewing several witnesses and conducting interviews with both the Employee and the Faculty Member, the investigators were able to present their report to the University on October 27, 2016.

[310]      There was a one month delay in the release of the report because it needed to be reviewed by the Office of the vice president and subsequently by the University’s privacy office to ensure no breach of third party privacy occurred. The University explains that it did not provide the Employee a copy of the University’s letters to the Faculty Member following the investigation report because that would have been a breach of his privacy rights under the Freedom of Information and Protection of Privacy Act.

[311]      For all these reasons, I find that the delays were not unreasonable and that the Employee had a role in some of the delays that she was experiencing in the investigation.

[312]      The Employee testified that she felt like for months, if not years, the University kept her in this highly uncertain place in terms of her financial stability. The Employee argues that the University could have and should have done more to assist her with matters relating to her pay and benefits.

[313]      I do not accept this argument because it is not consistent with the evidence presented in this case. The Employee received the benefits she initially sought. When she asked to be given leave with pay, the University responded promptly to her request and contacted her union for a response. The University continued to contact her union for a response. There is no dispute in the evidence that all of the negotiated collective agreement benefits were made available to the Employee.

[314]      Throughout the investigation of her grievance, the Employee remained on paid medical leave. She brought a medical note seeking medical leave to her meeting with Ms. A on June 6, 2016 and continued to provide notes confirming her medical leave when the previous period of leave assessed by her physician expired.

[315]      The University’s practice was to advise an employee after three months of paid medical leave of the process for pursuing a long-term disability claim so that there would be no gap in her access to paid leave. The Employee was upset by this request. She chose to delay pursuing her long-term disability claim which is why Ms. B and others made considerable efforts to bridge the Employee’s compensation after her paid sick leave benefits ran out.

[316]      Immediately after the Employee’s correspondence to the University’s Work Life Consultant requesting that her leave not be considered medical leave, the University attempted to negotiate with her union to place the Employee on a general leave with pay. The union did not respond to the University in a timely manner. Ms. B testified that the University took extraordinary steps to ensure that the Employee’s pay was uninterrupted. Ms. B felt very badly that the Employee was in this predicament and wanted to find a solution for her.

[317]      The Employee did not understand that her medical leave was not a “bank” that was exhausted once used. Ms. B gave evidence that the Employee continues to have access to sick leave as needed, as long as she is off work for unrelated illness or injury.

[318]      I find that the University did not discriminate against the Employee on the basis of her sex through deficiencies in its investigation into her allegations of sexual harassment against the Faculty Member. I find that the University’s response as a whole was not deficient.

[319]      Nothing turns on the delay in reporting of the incident. As soon as the Employee reported the incident to Ms. A, all appropriate steps were taken by Ms. A to advance her concerns. I do not accept that Ms. A had a duty to report the incident to WorkSafe at that time. Although the WorkSafe issue falls outside the scope of this complaint, the delay in reporting to WorkSafe does not give rise to a violation of the Code.

[320]      The Employee was asked for her input on whether the Faculty Member should be removed from campus. The Employee was given information about the choices available to her to advance her allegations against the Faculty Member. She chose to pursue a grievance with the assistance of her union. She advised Ms. B that one of her reasons for doing so was because she did not want to be directly involved. Once she chose to pursue a grievance, her union became her exclusive representative and had carriage of the matter. It was no longer appropriate for Ms. B to address the matter directly with the Employee, nor was it appropriate for her to offer benefits to the Employee not contemplated in her collective agreement.

[321]      The Employee takes issue with the fact that no single person from the University was assigned to ensure that her interests were met during the investigation. However, this flowed from her decision to pursue a grievance. As a result of her choice, it was the role of her union representative to ensure that her interests were met. Although she takes issue with the tone of some of these meetings, she acknowledges that her questions were answered promptly by the University.

[322]      There is no reliable evidence that the University subverted the investigation by overly narrow mandates or through the appointment of a male investigator. The scope of the investigation was not deficient. The mandate reflected the grievance which clearly alleges sexual harassment. The University applied the sexual harassment policy which reflects the legal test set out in Janzen.

[323]      The University made a mistake in appointing a male investigator to the investigation. This was after the Employee clearly expressed a preference for a female investigator. Shortly thereafter, the University remedied its mistake by appointing a female investigator. Other than the comments made by the male investigator during the investigation, which were insensitive, the Employee has not suggested that the investigation process was flawed or biased. Both investigators were involved. She disagrees with the outcome of the investigation. In these circumstances, this mistake does not give rise to a violation of the Code.

[324]      The delays in the investigation were due to a number of legitimate reasons. The Employee had a role in these delays. The Employee received the benefits that she initially sought. When she asked to be given leave with pay, the University responded promptly to her request and contacted her union for a response. Her union did not respond promptly. The University continued to contact her union to advance her interests. The undisputed evidence is that all of the negotiated collective agreement benefits were made available to the Employee.

[325]      In all of these circumstances, taken together, I find that the University is not liable for sex discrimination in how it responded to the Employee’s allegations against the Faculty Member.

[326]      The complaint is not justified and dismissed in its entirety.

[327]      This decision is subject to an anonymization order and publication ban.