Responding to Harassment of Employees by Third Parties: A Lesson for Employers

In a recent decision, Cillis v Hamilton-Wentworth District School Board, 2024 HRTO 1006 (“Cillis”), the Human Rights Tribunal of Ontario (“the Tribunal”) considered the extent of an employer’s obligation to protect its employees from harassment by third parties, as well as what it means for harassment to occur “in employment.”

The applicant is a teacher who had accepted an occasional teacher position at one of the respondent’s schools but had not yet begun work. In August 2018, approximately one month before her scheduled start date, the applicant began receiving text messages from the spouse of a vice-principal at the school to which the applicant had been assigned. The applicant immediately reported the messages, which she regarded as sexual harassment, to her union.

The applicant and her union representative met with the respondent in late August 2018. The respondent offered to transfer the applicant to another school, and to place her on paid leave until a position at another school could be found. It also offered to open an internal investigation and, separately, prepare a safety plan in the event that the applicant chose to enter the workplace. Finally, it suggested that the applicant file a police report.

The applicant did not accept or reject any of these offers, although she did file a police report in October 2018, and her harasser would ultimately plead guilty in August 2019. In the immediate term, the applicant remained on medical leave for the remainder of the fall 2018 semester, first on account of the harassment that she had endured and then on account of an unrelated surgery.

The applicant interviewed for a permanent part-time position in January 2019. Although the harassment has ended, the applicant continued to suffer from anxiety and fear for her safety. She requested accommodation in the form of additional interview time and the removal of a specific individual from the interview panel. The respondent granted both requests, although the applicant received less additional time than she expected to, and did see the removed individual in the hallway. The applicant was offered the position and accepted, but required an additional surgery later in the semester, and so remained on medical leave until at least the end of the 2020-21 school year.

Eventually, the applicant brought an application under the Human Rights Code (“the Code”), alleging that the respondent had “failed to keep [her] safe” from harassment on the basis of sex. While the respondent did not dispute that the applicant had experienced sexual harassment, it took the position that harassment did not occur “in employment”, as it did not occur in the workplace and was not perpetrated by the employer, another employee, or anyone who was in a position to confer or deny an employment-related benefit. The respondent also took the position that the matter had been “handled” before the applicant could even begin employment.

The Tribunal accepted all of the respondent’s arguments and held that the harassment to which the applicant had been subjected had not occurred “in employment.” It therefore dismissed the application for lack of jurisdiction. As a result, there was no need for the Tribunal to consider whether the respondent’s handling of the situation, including its various efforts to accommodate the applicant, had been adequate.

The Tribunal’s decision in Cillis is a helpful reminder that employers can take steps to protect themselves from liability for the actions of third parties. It is notable that the applicant does not appear to have taken issue with how the respondent conducted itself after being made aware of the sexual harassment. Rather, her contention was that the harassment ought not to have happened in the first place, and that the respondent bore some responsibility for the fact that it did. That line of argument will typically not be viable in cases where the harassment was perpetrated by a true third party and could not reasonably have been prevented by the employer—but the employer’s response to third-party harassment can still be found to violate the Code. In Cillis, the respondent protected itself from that kind of argument by taking swift action to remedy the situation. Other employers should follow the respondent’s example.