Employers often complain that human rights tribunals are stacked against them. One employer’s recent experience, related below, demonstrates why.
After a night of drinking at a company-sponsored retreat in North Carolina, Anne-Marie Sutton slipped into a bathing suit and joined some colleagues in a hot tub. Sutton, a contractor for an Ontario accounting firm, had travelled with the company to the retreat. Alcohol flowed freely, and when another guest starting flirting with her, Sutton reciprocated. Once in the hot tub, they starting making out. One of the witnesses who later testified said that Sutton appeared “into it” and looked “like she was having a good time.”
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However, after returning home from the retreat, Sutton suddenly claimed that she had been drugged and sexually assaulted in the hot tub by the guest she had made out with and a partner from the firm. Sutton quickly resigned from her job and suggested that she had been raped. Dissatisfied with the company’s response to her concerns, she launched a human rights complaint, alleging she had been secretly videotaped, drugged and sexually assaulted at the retreat.
After an eight-day hearing, the Ontario Human Rights Tribunal recently concluded that Sutton simply could not be believed and that her version of the events did not occur.
The problem is, unlike the courts where the loser pays legal costs to the other side, human rights tribunals have no mandate to award legal costs. This serves employees’ interests but not those of their current or former employers. If employees have no risk of losing at trial and paying legal costs, why not pull the trigger on an extensive complaint? Here, despite making serious claims that were ultimately unsupported, Sutton was not forced to pay her former employer even a dime.
What’s worse is that while Sutton was provided with legal counsel at the government’s expense by the Human Rights Legal Support Centre, a provincially funded agency that pursues claims on behalf of employees, her former employer was left to fend for itself. In my experience, if complainants are actually forced to pay for a lawyer, fewer frivolous claims will be advanced, leaving more time and resources for those that actually do have merit.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. Reach him at email@example.com. Follow him on Twitter @danlublin.