Jan 26, 2012 - Harassment in the Workplace, 3rd edition (Toronto: Butterworths, 2000) at 140. ...... social media such a
Report to Convocation January 26, 2012
Equity and Aboriginal Issues Committee/ Comité sur l’équité et les affaires autochtones Committee Members Janet Minor, Chair Raj Anand, Vice-Chair Susan Hare, Vice Chair Constance Backhouse Paul Copeland Cathy Corsetti Mary Louise Dickson Adriana Doyle Seymour Epstein Julian Falconer Howard Goldblatt Janet Leiper Dow Marmur Wendy Matheson Judith Potter Susan Richer Paul Schabas Baljit Sikand Beth Symes Purpose of Report: Information Prepared by the Equity Initiatives Department (Josée Bouchard – 416-947-3984)
COMMITTEE PROCESS 1.
The Equity and Aboriginal Issues Committee/Comité sur l’équité et les affaires autochtones (Equity Committee) met on January 11, 2012. Committee members Janet Minor, Chair, Raj Anand, Vice-Chair, Susan Hare, Vice-Chair, Constance Backhouse, Cathy Corsetti, Mary Louise Dickson, Adriana Doyle, Howard Goldblatt, Janet Leiper, Wendy Matheson, Judith Potter, Susan Richer and Beth Symes participated. Julie Lassonde, representative of the Association des juristes d’expression française de l’Ontario, and Milé Komlen, Chair of the Equity Advisory Group/Groupe consultatif en matière d’équité, participated. Staff members Josée Bouchard and Kimberly Condon attended.
2
INFORMATION
PREVENTING HARASSMENT, DISCRIMINATION AND VIOLENCE IN THE LEGAL WORKPLACE: GUIDE TO DEVELOPING POLICIES FOR LAW FIRMS OR LEGAL ORGANIZATIONS 2.
The Ontario Human Rights Code (the Code), Rules 5.03 (Sexual Harassment) and 5.04 (Discrimination) of the Rules of Professional Conduct (the Rules) and Rule 2.03 of the Paralegal Rules of Conduct (the Paralegal Rules) prohibit harassment and discrimination in the legal workplace, in professional dealings and in the delivery of services. Effective June 15, 2010, the Occupational Health and Safety Act (the OHSA) requires most employers in Ontario to adopt policies and programs that address workplace violence and harassment. As a result, the Equity Initiatives Department has developed the guide entitled Preventing Harassment, Discrimination and Violence in the Legal Workplace: Guide to Developing Policies for Law Firms or Legal Organizations (the Guide), presented at Appendix 1, which includes sample policies for addressing harassment and discrimination and for addressing workplace violence within law firms, and sets out procedures to address these matters in a prompt, effective and confidential manner. The Guide is one of a series of guides adopted by the Law Society to assist law firms and legal organizations in developing their own resources.
3.
The Equity Advisory Group considered the Guide and provided helpful comments, most of which were incorporated into the Guide. The Equity Committee approved the Guide at its January 11, 2012 meeting.
THE PROVISION OF LEGAL SERVICES IN CASES INVOLVING CLAIMS OF SEXUAL ABUSE – AN EDUCATIONAL GUIDE FOR LAWYERS AND PARALEGALS 4.
The Cornwall Public Inquiry was established by the Government of Ontario on April 14, 2005, under the Public Inquiries Act. The mandate of the Commission was to inquire into 3
and report on the events surrounding allegations of abuse of young people in Cornwall by examining the response of the justice system and other public institutions to the allegations. The Commission made recommendations to improve the response in similar circumstances. As well, the Commission inquired into and reported on processes, services and programs to encourage community healing and reconciliation in Cornwall.
5.
In April 2005, then Ontario Attorney General Michael Bryant appointed Commissioner Justice G. Normand Glaude to lead the inquiry.
6.
Hearings for the Cornwall Public Inquiry ended on January 29, 2009. Final submissions were completed on February 27, 2009. Commissioner Glaude released the Report of the Cornwall Inquiry on December 15, 2009.
7.
The guide entitled The Provision of Legal Services in Cases Involving Claims of Sexual Abuse – An Educational Guide for Lawyers and Paralegals (the Guide), presented at Appendix 2, was developed as an educational tool primarily to assist lawyers and paralegals who provide legal services to claimants acting in cases of sexual abuse where the claimants have, as an objective, the pursuit of compensation. The purpose of the Guide is to propose appropriate practices and to foster professional and ethical conduct in the representation of claimants in such cases.
8.
The Guide was prepared, in part, in response to the recommendation of the Cornwall Public Inquiry that self-governing professional bodies whose members are in contact with persons who may have been sexually abused “promote education in this field and, if appropriate, make amendments to relevant guidelines and standards related to professional competence”.
9.
The Guide was drafted by three experienced lawyer in this area, Elizabeth Grace, Simona Jellinek and Susan Vella, and reviewed by defense counsel and counsel involved in the Cornwall Inquiry. 4
10.
The Equity Committee approved the Guide at its January 11, 2012 meeting. The Guide should be considered in conjunction with the Guidelines for Lawyers Acting in Cases Involving Claims of Aboriginal Residential School Abuse, adopted by Convocation in 2003 and available at http://rc.lsuc.on.ca/pdf/equity/guideline_aboriginal_res.pdf.
EQUITY AND ABORIGINAL ISSUES COMMITTEE - COMMENTS ON THE CONSULTATION PAPER MEASURING DIVERSITY IN LAW FIRMS – A CRITICAL TOOL FOR ACHIEVING HIGH PERFORMANCE 11.
In November 2011, the Canadian Bar Association (CBA) released a consultation paper entitled Measuring Diversity in Law Firms – A Critical Tool for Achieving High Performance (the Consultation Paper), available at http://www.cba.org/CBA/BlastEmail/PDF/CBA_Measuring_Diversity_Guide-Draft.pdf. The Consultation Paper provides background information on current law firm realities, the role that diversity plays in organizational performance, and the impact of different approaches to diversity management. The Consultation Paper also describes measurement strategies and the major steps involved in measuring diversity through the collection of self-identification data and diversity climate data.
12.
The Equity Committee created a working group composed of bencher Julian Falconer, bencher Susan Hare, bencher Janet Minor and Sandra Yuko Nishikawa (representative of Equity Advisory Group) to draft comments.
13.
The Equity Committee made submissions in response to the Consultation Paper. The submissions are available by contacting Josée Bouchard, Equity Advisor, at
[email protected], 416-947-3984 or 1-800-668-7380.
AMENDMENT TO THE EQUITY ADVISORY GROUP TERMS OF REFERENCE TO INCLUDE PARALEGALS 14.
As a result of challenges in recruiting paralegals to the Equity Advisory Group (EAG), on 5
December 15, 2011, the EAG amended its Terms of Reference to create two positions specifically for paralegals: one for an individual paralegal and one for an organization or association representing paralegals. It was also understood that other positions on EAG could be filled by paralegals. In assigning two positions specifically for paralegals, EAG hopes to permanently ensure the representation of paralegals on EAG. The Equity Committee approved the amendments to the Terms of Reference on January 11, 2012.
HUMAN RIGHTS MONITORING GROUP INTERVENTION VENEZEULA – EXTENTION OF HOUSE ARREST OF JUDGE MARIA LOURDES AFIUNI 15.
On December 9, 2009 Judge Maria Lourdes Afiuni was arrested by intelligence officers after ordering the conditional release pending trial of Eligio Cedeño. Cedeño’s detention was declared arbitrary in September 2009 by the United Nations Working Group on Arbitrary Detention, which cited violations of his right to a fair trial. Judge Afiuni’s decision was, at least partly, based on the findings of the Working Group.
16.
Judge Afiuni released Cedeño because he had been in pre-trial detention for nearly three years, which was in violation of a two-year limit prescribed by Venezuelan law. As a result, Judge Afiuni was charged with corruption, being an accessory to escape, criminal conspiracy and abuse of power. In addition to these charges, she has been denied a public defender.
17.
In an appearance before Government officials, broadcast on national television and radio, the President of Venezuela, Hugo Chávez, demanded that Judge Afiuni be sentenced to a 30-year prison term, even if new legislation was required to achieve that result. He also suggested that he had instructed the Attorney General and the President of the Supreme Court to punish her as severely as possible to prevent similar actions by other judges. It has been reported that the arrest of Judge Afiuni was politically motivated as the release of Cedeño outraged President Chávez.
6
18.
The jailing of a tenured judge has illuminated the increasingly tight control President Chávez exerts over the judiciary, a situation condemned by legal watchdog groups and constitutional experts across the Americas. There have been other high profile arrests suggesting a systemic pattern of President Chávez’s use of security and intelligence apparatuses to quash changes to his control of political institutions.
19.
Criticism of Judge Afiuni’s imprisonment from fellow judges in Venezuela has been muted, although judicial supporters of President Chávez have demonstrated their allegiance to the President and expressed support for the government's efforts to create a system that blurs the separation of powers. There has however been vocal criticism outside of Venezuela. The Inter-American Commission on Human Rights also found and commented on the dismissal of Venezuelan judges who have issued rulings that antagonize the government. Moreover, legal experts in Venezuela estimate that about half of Venezuelan judges are provisional, which they say leave them more susceptible to pressure.
20.
The Law Society intervened in this case in May 2010 by letter of intervention and public statement.
21.
Recent reports indicate that, on December 13, 2012, a judge granted the request of the Public Prosecutor to extend the measure of house arrest against Judge Afiuni by two years.
22.
In light of the urgency of this matter, the Treasurer sent a letter of intervention to Venezuelan authorities and the Law Society released a public statement in the matter. The public statement is available at http://www.lsuc.on.ca/with.aspx?id=2147486490.
PUBLIC EDUCATION EQUALITY AND RULE OF LAW SERIES CALENDAR – JANUARY – JUNE 2012 23.
The calendar of Public Education Equality and Rule of Law Series is as follows: 7
BLACK HISTORY MONTH February 7, 2012 Convocation Hall (6:00 p.m. – 8:00 p.m.) In celebration of Black History Month, the Law Society and the Canadian Association of Black Lawyers are pleased to host a reception featuring a book signing and discussion with acclaimed Canadian author Lawrence Hill. In 2008, he won the Commonwealth Writers’ Prize for Best Book for The Book of Negroes, which was a number one bestseller in Canada. Some of his other works include Any Known Blood, Black Berry Sweet Juice: On Being Black and White in Canada, and Some Great Thing. INTERNATIONAL WOMEN'S DAY March 2, 2012 Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) LA JOURNÉE DE LA FRANCOPHONIE Wednesday, March 21, 2012 Convocation Hall (6:00 p.m. – 8:00 p.m.) RULE OF LAW SERIES March 28 or 29, 2012 (tentative) Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) HOLOCAUST REMEMBRANCE DAY April 17, 2012 Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) ASIAN AND SOUTH ASIAN HERITAGE MONTH May 17, 2012 Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) ACCESS AWARENESS – LEGAL SYMPOSIUM ON DISABILITY ISSUES June 6, 2012 Lamont Learning Centre (4:00 p.m. – 8:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) NATIONAL ABORIGINAL HISTORY MONTH June 19, 2012 Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.) 8
PRIDE WEEK June 21, 2012 Lamont Learning Centre (4:00 p.m. – 6:00 p.m.) Convocation Hall (6:00 p.m. – 8:00 p.m.)
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Appendix 1
THE LAW SOCIETY OF UPPER CANADA
PREVENTING HARASSMENT, DISCRIMINATION AND VIOLENCE IN THE LEGAL WORKPLACE: GUIDE TO DEVELOPING POLICIES FOR LAW FIRMS OR LEGAL ORGANIZATIONS
January, 2012
10
ADDRESSING HARASSMENT, DISCRIMINATION AND VIOLENCE IN THE LEGAL WORKPLACE: GUIDE TO DEVELOPING POLICIES FOR LAW FIRMS AND LEGAL ORGANIZATIONS I.
INTRODUCTION
The Ontario Human Rights Code1 (the Code), Rules 5.03 (Sexual Harassment) and 5.04 (Discrimination) of the Rules of Professional Conduct2 (the Rules) and Rule 2.03 of the Paralegal Rules of Conduct3 (the Paralegal Rules) prohibit harassment and discrimination in the legal workplace, in professional dealings and in the delivery of services. Effective June 15, 2010, the Occupational Health and Safety Act (the OHSA)4 requires most employers in Ontario to adopt policies and programs that address workplace violence and harassment. As a result, the Law Society has developed this Guide, which includes sample policies for addressing harassment and discrimination and for addressing workplace violence within law firms5, and sets out procedures to address these matters in a prompt, effective and confidential manner. The Guide is one of a series of guides adopted by the Law Society to assist law firms and legal organizations in developing their own resources.6 This Guide is only up‐to‐date as at the date of writing. The Guide is divided as follows: • Reasons to Adopt a Policy • How Law Firms Should Approach the Sample Policies • Part 1 –Addressing Harassment and Discrimination o Overview of Legal Principles o Sample Policy ‐ Preventing Harassment and Discrimination o Considerations for Small Law Firms • Part 2 –Addressing Workplace Violence o Overview of Legal Principles o Sample Policy – Preventing Workplace Violence
1
R.S.O. 1990, c. H.19. Adopted by Convocation of the Law Society of Upper Canada on June 22, 2000, effective November 1, 2000 and amendments current to April 28, 2011. 3 Adopted by Convocation of the Law Society of Upper Canada on March 29, 2007 effective May 1, 2007 and amendments current to April 28, 2011. 4 R.S.O. 1990, c. O.1. 5 The term law firm in this document will be used to include providers of legal services, legal clinics, legal departments and legal non-profit organizations. 6 Law Society guides are available online at http://rc.lsuc.on.ca/jsp/equity/policies-publications-reports.jsp 2
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II.
REASONS TO ADOPT A POLICY
The OHSA mandates most employers in Ontario to adopt policies and programs to address workplace harassment and violence. It is also well established that the adoption of effective harassment and discrimination prevention policies and procedures and the design and delivery of education programs assist in creating a respectful work environment and in reducing the risk of liability for employers.7 The advantages of written policies include the following: a. they encourage respect for the dignity of all individuals in the firm; b. they demonstrate that the firm’s management takes these issues seriously and promotes a respectful workplace; c. they provide procedures for handling complaints and enhance transparency; d. they encourage prompt resolution of workplace harassment and discrimination; e. they outline preventative, remedial and disciplinary actions that may be taken; and f. they minimize the risk of harm to staff, paralegals and lawyers, as well as the risk that a firm will be held liable. III.
HOW LAW FIRMS SHOULD APPROACH THESE SAMPLE POLICIES
The sample policies included in this document are precedents and are intended to provide guidance, rather than to represent the ultimate or ideal policy. The precedents apply to a legal environment composed of partners, associates and other staff, not subject to a collective agreement. Firms should adapt and tailor the precedents to their own structure and culture. For example, where a workplace is governed by a collective agreement, the firm may have to design its policies to take that into account, and the firm may have to consider its policies when negotiating its collective agreement. The OHSA provides that employers with more than five employees must have written policies that address workplace harassment and violence. Because of the different nature of workplace harassment and workplace violence and the fact that organizations will likely establish different processes to address these issues, we have developed one precedent to address workplace harassment and discrimination and a separate one to address workplace violence. Law firms and legal organizations could address both concepts in one policy.
7
For example, see Ferguson v. Meunch Works Ltd. (1997), 33 C.H.R.R. D/87 (B. C. H. R. T.).
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PART 1 ‐ PREVENTING HARASSMENT AND DISCRIMINATION A.
OVERVIEW OF LEGAL PRINCIPLES
The Code8, Rules 5.03 (Sexual Harassment) and 5.04 (Discrimination) of the Rules9 and Rule 2.03 of the Paralegal Rules10 prohibit harassment and discrimination in the workplace. The OHSA11 requires employers with more than five regular employees in Ontario to adopt written policies on workplace harassment. This part discusses firms’ legal and professional responsibility to prevent and respond to harassment and discrimination.
1.
Definition of Harassment
“Harassment” is defined in the Code12 and the OHSA13 as “[...] engaging in a course of vexatious comment or conduct that is known or ought to reasonably be known to be unwelcome.” Although the definition implies that harassment will occur only when there is more than one or a series of vexatious comment or conduct, “one” comment or conduct may constitute harassment if it is of a serious nature or egregious.14 The Code, the Rules and the Paralegal Rules prohibit harassment in employment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex15, age, record of offences, marital status, family status or disability (the “enumerated grounds”).16 Workplace harassment that is not based on enumerated grounds is also prohibited under the OHSA.
8
Supra note 1. Supra note 2. 10 Supra note 3. 11 Supra note 4. 12 Subsection 10(1) of the Code, supra note 1. 13 Subsection 1(1) of the OHSA, supra note 4. 14 In Parsonage v. Canadian Tire Corp. (1995), 28 C.H.R.R. D/42 (Ont. Bd. of Inquiry) and Prestressed Systems Inc. v. L.I.U.N.A. [2005] O.L.A.A. No. 551 (Ont. Arb. Bd.) both boards concluded that a single improper and insulting joke, told by employees or supervisors on break, does not constitute a violation of the Code, but egregious racial or other threats or comments, even if made only once, could constitute an infringement of the Code. See Prestressed Systems Inc. v. L.I.U.N.A., Local 625 (2005) 143 L.A.C. (4th) 340. Serious forms of harassment, such as physical sexual assault, need not occur more than once to be considered harassment. See Arjun P. Aggarwal, Sexual Harassment in the Workplace, 3rd edition (Toronto: Butterworths, 2000) at 140. 15 Subsections 7(2) and 7(3) of the Code, supra note 1, explicitly prohibit sexual harassment. 16 Although subsection 5(2) of the Code does not expressly protect against harassment on the basis of sexual orientation, subsection 5(1) protects against discrimination on that basis. In addition, the Supreme Court of Canada has held that harassment is a form of discrimination and given that subsection 5(1) of the Code prohibits discrimination on the basis of sexual orientation, harassment can be interpreted as being included under 5(1). Further, the Supreme Court of Canada has concluded that human rights legislation that denies equal benefit and 9
13
The Rules17 and Paralegal Rules18 are consistent with the Code and prohibit harassment and discrimination based on enumerated grounds done by a lawyer or paralegal against a colleague, a staff member, a client, or any other person.
2.
Elements of the Definition of Harassment
The following are elements of the definition of harassment: a harassment may be verbal,19 physical20 or visual;21 b the criteria is whether a reasonable person in the shoes of the victim would be offended; c the comment or conduct does not have to be intentional; d it may be a series of conduct or comment that happens for a period of time22 or it may be one incident, if the incident is serious, egregious or constitutes a threat;23 e the victim does not have to object to the behaviour to establish that there is harassment;24 f the unwelcome comment or conduct does not have to be directed at a specific person for harassment to occur;25 protection of the law on the basis of sexual orientation is a violation of section 15 of the Canadian Charter of Rights and Freedom (see Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252). 17 Rules 5.03 (Sexual Harassment) and 5.04 (Discrimination) of the Rules, supra note 2. 18 Rule 2.03 of the Paralegal Rules, supra note 3. 19 Such as derogatory comments about a person’s sexual attractiveness, demeaning jokes, sexual suggestions and innuendo, sexual solicitations. Unwelcome remarks, jokes, innuendos or taunting about a person’s racial or ethnic background, colour, place of birth, citizenship or ancestry. Refusing to speak or work with an employee because of his or her racial or ethnic background or because of his or her disability. 20 Physical harassment includes such things as unwanted touching, such as stroking, tickling or grabbing someone, impeding or blocking movement in an attempt to get physically close. Physical harassment also include such behaviour as insulting gestures or practical jokes based on ethnic or racial grounds which cause embarrassment or awkwardness. 21 Derogatory or degrading posters, explicit sexual images, cartoons, graffiti or the displaying of racist, derogatory, or offensive pictures or materials or the delivery of offensive e-mail. 22 For example, one homophobic joke might not be harassment, but persistent homophobic comments may become harassment with time. 23 Greater Essex County District School Board v. E.T.F.O. (2007) 160 L.A.C. (4th) 162 (Ont. Arb. Bd.); Prestressed Systems Inc. v. L.I.U.N.A. Local 625 (2005) 143 L.A.C. (4th) 340 (Ont. Arb. Bd.); Parsonage v. Canadian Tire Corp. (1995), 28 C.H.R.R. D/42; Gray v. A. & W. Food Services Lt. (May 12, 1994), No. 94-011 (Ont. Bd. of Inquiry). 24 A person does not have to object to the behaviour for that behaviour to be considered harassment. What is relevant is whether the respondent “knew or ought reasonably to have known” that the behaviour was unwelcome. Tribunals have generally adopted an objective/subjective standard of the reasonable person in the shoes of the victim. If a reasonable person in the shoes of the victim were to find the behaviour unacceptable, the alleged harasser ought to have known that the behaviour would be unwelcome. The comments do not have to be directed at the complainant to amount to harassment. See Cuff v. Gypsy Restaurant (1987), 8 C.H.R.R. D/3972 (Ont. Bd. Of Inquiry); Morano v. Nuttal (1988), 9 C.H.R.R. D/4876 (Ont. Bd of Inquiry), Sharp v. Seasons Restaurant (1987), 8 C.H.R.R. D/4133 (Ont. Bd. of Inquiry) and Lee v. T.J. Applebee’s Food Conglomeration (1987), 9 C.H.R.R. D/4781 (Ont. Bd. of Inquiry).
14
g
3.
comments or conduct that tends to ridicule or disparage a group causing humiliation, insult, apprehension or disruption may poison the work environment.26
Definition of Discrimination
Discrimination is defined as differential treatment, whether intentional or not, that imposes a disadvantage or a burden on a person or group of persons, or that result in the denial of a benefit to a person or group of persons, based on one or more of the prohibited grounds of discrimination. The differential treatment must result in the perpetuation of prejudice or reinforcement of stereotypes.27 The fact that there is no intention to discriminate is of no relevance. When deciding whether discrimination has occurred, one must look at the impact that practices, policies and behaviour have on individuals.
4.
Retaliation, Threats or Reprisals
Retaliation, threats or reprisals in relation to a complaint or a proceeding related to harassment or discrimination are prohibited. The Code grants every person the right to claim and enforce her or his rights under the Code without a threat or reprisal for doing so. This includes the institution and participation in proceedings under the Code and also the refusal to infringe a right of another person. Therefore, complainants and potential complainants are protected against retaliation, threats or reprisals for filing a complaint, assisting in a complaint, or testifying in human rights cases.28
25
Comments or conduct that tend to demean a group covered by a protected ground, even if not directed at a specific individual, can create a poisoned work environment resulting in unequal terms and conditions of employment. For example, employees routinely making derogatory jokes and comments about a person who is a member of a racialized community could qualify as harassment. 26 A poisoned work environment refers to the creation of a negative, hostile or unpleasant workplace which causes significant and unreasonable interference to a person’s work environment. When considering whether there is a poisoned work environment, it is important to consider the context. See Moffatt v. Kinark Child & Family Services [1998] O.H.R.B.I.D. No. 19, Decision No. 98-019 at par. 211 and par. 215. 27 Ontario (Disability Support Program) v. Tranchemontagne (2010) O.N.C.A. 593 (Ont. C.A.) 28 Retaliation may include social ostracism, the stymieing of careers or damage to the reputation. The vulnerability of complainants and the impact on the relation of complainants with colleagues and peers increases when complaints of harassment and discrimination are not dealt with appropriately by law firms. Section 8 of the Code, supra note 1. Retaliation is a ground for alleging discrimination which is distinct from any particular alleged act of discrimination. It stands by itself and is designed to encourage complainants to pursue their rights without the fear of recrimination for doing so. See Abouchar v. Toronto (Metro) School Board (No. 3) (1998), 31 C.H.R.R. D/411 (Ont. Bd. Of Inquiry).
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5.
Malicious or Bad Faith Complaint
Malicious or bad faith complaints of harassment or discrimination mean that a person has made a complaint that he or she knew was untrue. Although such complaints are rare, they are serious offenses because they may have very serious adverse ramifications for the respondent. Workplace harassment and discrimination prevention policies should encourage victims to come forward, but at the same time, discourage malicious or bad faith complaints against innocent persons. Submitting a complaint in good faith, even where the complaint cannot be proven, is not tantamount to a malicious or bad faith complaint.
6.
Definition of Employees
The Code’s protection extends to employees. The definition of employees includes temporary, casual and contract staff, and other persons in a work context, such as people who work to gain experience or for benefits, volunteers, co‐op students and dependent and independent contractors. 29 The Supreme Court of British Columbia found that partners may be in an employment relationship with each other and bound by the human rights legislation.30
7.
Definition of “In the Workplace” or “Employment”
Both the Rules and the Paralegal Rules prohibit harassment and discrimination in employment and professional dealings with members of the respective professions.31 In the Rules, employment extends to professional employment of other paralegals, lawyers, articled students, or any other person, from administrative staff to partners. In the Paralegal Rules, employment extends to others, particularly other licensees or any other person. The term “employment” also covers recruitment, interviewing, hiring, promotion, evaluation, compensation, professional development, admission to partnership and activities related to the partnership. 29
Human Rights at Work 2008 (Toronto: Ontario Human Rights Commission, 2008). It should be noted that all employment relations, including those governed by a collective agreement and probationary employees are subject to the Code (see Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324 (2003), 230 D.L.R. (4th) 257 (S.C.C.)). 30 Fasken Martineau DuMoulin LLP v. British Columbia Human Rights Tribunal and John Michael McCormick (2011) B.C.S.C. 713 (Sup. Ct. B.C.). 31 While the language in the Rules and the Paralegal Rules is not identical, it is assumed that they are intended to communicate the same sentiment.
16
The Code applies to “the workplace”,32 or “the course of employment”.33 The scope of those terms is broad. The workplace includes, a activities that he or she might normally or reasonably do or be specifically authorised to do while so employed; b activities that fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it; c activities in furtherance of duties he or she owed to his or her employer; or d activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does. Harassment can take place in the workplace itself, or outside of the workplace in situations that are in some way connected to work.34 For example, during off‐site meetings, business trips, social gatherings taking place off‐site, recruitment lunches or dinners with potential articling students or other hiring candidates, end of the year parties and any other event or place related to employment when the employee is present in the course of employment.35 The OHSA defines the “workplace” in a slightly more restrictive way. It states “workplace means any land, premises, location or thing at, upon, in or near which a worker works.” The OHSA also provides exceptions to the definition of workplace, including one that states that the OHSA does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection. Members of a firm are also prohibited from engaging in harassment or discrimination when dealing with clients, or other parties with whom they interact in a professional capacity.
32
The term “in the workplace” is used in sections 5 and 7 of the Code. The term “in the course of employment” is used in the Canadian Human Rights Act, R.S.C. 1985, c. H-6. 34 Simpson v. Consumers’ Assn. of Canada (2001), 209 D.L.R. (4th) 214. The respondent, an executive director of the appellant association had propositioned a female member of staff during a three-day meeting of the board of directors in Saskatchewan. The incident took place late one evening at the hotel where they were both staying. On another occasion the respondent groped another female. That incident happened at around 11:00 p.m. in the hospitality suite of a hotel in Banff where the CAC was holding its annual general meeting. While attending a business conference in Quebec, and in the presence of other staff members, the respondent was also inappropriate while in the conference hotel’s hot tub with a secretary. The Court of Appeal concluded that, although the incidents took place during CAC meetings or retreats held at hotels, they were clearly business meetings, even if they included a social component. 35 See Anti-Harassment Policies for the Workplace, An Employer’s Guide (Ottawa: Canadian Human Rights Commission, 2006). Also online . 33
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8.
Liability of Employer
Employers have the ultimate responsibility for ensuring that their workplace is free of harassment and discrimination and for providing a safe and healthy working environment.36 The response of an employer will have important practical implications. For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps.37 It is not acceptable to choose to stay unaware of harassment or discrimination. Employers have a legal obligation to take steps to prevent and address human rights violations and to create a workplace environment that is respectful. Employers may be in violation of the Code if they “directly or indirectly, intentionally or unintentionally infringe the Code, or where they do not directly infringe the Code but authorize, condone or adopt behaviour that is contrary to the Code”.38 Some factors that are considered when deciding whether an employer has met its duty respond to a human rights claim include: a procedures in place to address harassment and discrimination; b the promptness of the organization’s response to the complaint; c how seriously the complaint was treated; d resources made available to deal with the complaint; e whether the organization provided a healthy environment for the person who complained; f how well the action taken was communicated to the person who complained.39 The Code makes an employer responsible for any acts or omission to act carried out in the course of employment by an officer, agent, or employee for certain
36
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84. An employer must respond to internal complaints of discrimination lodged by its employees. Failure to do so will itself result in liability under section 5 of the Code. The employer must also take the matter seriously and act promptly (see Murchie v. JB’s Mongolian Grill (2006) HRTO 33. 38 Policy on Preventing Sexual and Gender-Based Harassment (Toronto: Ontario Human Rights Commission, 2011) at 43. 39 Ibid. at 43. 37
18
discriminatory conducts. However, it exempts the employer from liability in relation to harassment caused by its agents or employees.40 In the case of a corporation, a directing mind41 who discriminates against or harasses anyone in a manner contrary to the Code, or who knows of harassment or discrimination and did not take steps to remedy a situation, engages the liability of the employer. A “directing mind” of a corporation is “generally speaking, whenever an employee provides some function of management, he is then part of the directing mind”.42 In applying the human rights definition of “directing mind” in the context of a partnership or a limited liability partnership, it could be argued that all partners perform management duties and have responsibilities that are equivalent to those of a “directing mind” in a corporation. For this reason, the term “directing mind” is used throughout this document, when referring to those who may engage the liability of the employer and who have a responsibility to take reasonable steps to address allegations of harassment or discrimination. In addition, the OHSA now imposes a responsibility on employers to develop and maintain programs to implement a policy on workplace harassment. This includes measures and procedures for employees to report incidents of workplace harassment, set out how the employer will investigate and deal with incidents and complaints of workplace harassment. The employer must also
40
Subsection 46.3 of the Code states: For the purposes of this Act, except […]subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
Section 46.2 provides that “every person who contravenes section 9 or subsection 31 (14), 31.1 (8) or 44 (13) or an order of the Tribunal is guilty of an offence and on conviction is liable to a fine of not more than $25,000. No prosecution for an offence under this Act shall be instituted except with the consent in writing of the Attorney General.” 41 The Human Rights Commission provides the following definition of “directing mind”: generally speaking, an employee who performs management duties is part of the “directing mind” of a company. Even employees with only supervisory authority may be viewed as part of a company’s “directing mind” if they function, or are seen to function, as representatives of the organization. Holding an employer liable for the conduct of an employee who is part of the “directing mind” is consistent with the “organic theory” of corporate liability. Nonsupervisors may be considered part of the “directing mind” if they have de facto supervisory authority or have significant responsibility for the guidance of employees. See Human Rights at Work, supra note 44 at 30. 42 Strauss v. Canadian Property Investment Corp. (No. 2) (1995), 24 C.H.R.R. D/43 (Ontario Bd. of Inq.) at D/50. See also Naraine v. Ford Motor Co. (1996) O.H.R.B.I.D. no. 23; Fu v. Ontario (1985), 6 C.H.R.R. D/2797 (Ont. Bd. of Inq.); Shaw v. Levac Supply Ltd. (1990), 14 C.H.R.R. D/36 (Ont. Bd. of Inq.).
19
provide information and instruction that is appropriate for the employee on the contents of the policy and program with respect to workplace harassment.
9.
Harassment or Discrimination by Clients
An employer has a responsibility to maintain a work environment that is free of harassment or discrimination and it has a duty to intervene harassment of its employees by third parties. The employer cannot be absolved of its responsibility by showing that it was responding to the real or perceived preferences of clients. In the case of harassment by clients, the employer has the greatest control over workplace conditions, and it must intervene effectively to stop such harassment. While an employer may not be able to control the conduct of a client, the employer does have control over how it responds to the conduct in the workplace, regardless of how the conduct occurred. In deciding whether an employer took reasonable steps to eliminate the problem, a tribunal will determine whether an employer acted promptly and effectively in all the circumstances in response to acts of harassment and will assess the appropriateness of its efforts to prevent harassment.
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B.
SAMPLE POLICY – PREVENTING HARASSMENT AND DISCRIMINATION
The following is a sample policy that firms can use to develop their own policy. The sample policy includes the following: statement of principles, objectives, application of the policy, a confidentiality clause, definitions, and addressing threats, reprisals or retaliations and bad faith. The procedures include informal procedures and formal procedures. These clauses and procedures are presented to make law firms aware that these are options available when addressing harassment or discrimination complaints. Law firms are not obligated to adopt all or some of these options in their policies. Policies should be developed based on context and the culture of the firm. POLICY FOR ___________________________ (HEREINAFTER “THE FIRM”) Note: Square brackets “[ ]” are used throughout the sample policy to indicate that firms should include terminology or information relevant to their organization. Note: It is important to review the policy on a periodic basis. It is proposed that the first review take place approximately one year after the adoption of the policy so that the firm can assess early on the effectiveness of the policy and whether it addresses all anticipated issues. Communicating the Policy Once adopted, it is important for firms to communicate the policy to all staff, paralegals and lawyers at the firm and develop an education strategy. The initial presentation of the policy and a clear statement of management support are important. Education programs should be organized to inform all staff, paralegals and lawyers of the firm about the provisions of the policy and the objectives that it is intended to meet. It is advisable that individuals charged with implementing and applying the policy, for example members of an equality committee, appointed advisors under the policy or directing minds, be fully versed in the specifics of the policy, the law, interviewing techniques and information gathering.
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The firm might consider asking those covered by the policy to sign a commitment pledge acknowledging receipt and an understanding of the policy. This increases the acceptance and understanding of the policy and allows the firm to ensure that its staff, paralegals and lawyers are fully aware of the policy. It is a good practice to make the policy available to all prospective staff, paralegals or lawyers of the firm by informing the public and legal professionals of the availability of the policy. Such a practice will make a strong statement about the firm’s support for the policy and its objectives. The Code applies to the provision of terms and conditions of employment, recruiting, application forms, interviews and promotions.
Statement of Principles 1.
2.
The Firm recognizes that harassment and discrimination are offensive, degrading and are prohibited under the Ontario Human Rights Code, the Rules of Professional Conduct and the Paralegal Rules of Conduct of the Law Society of Upper Canada. The Firm also recognizes its obligations under the Occupational Health and Safety Act. The Firm is committed to providing a work environment that promotes equality and ensures that all individuals are treated with respect and dignity.
3.
Harassment and discrimination are not tolerated. Regardless of seniority, individuals found to have engaged in behaviour constituting harassment or discrimination may be severely disciplined.
Objectives 4.
The objectives of this policy are to, a. foster and maintain a respectful working environment in which staff, paralegals and lawyers treat each other with mutual respect; b. alert all staff, paralegals and lawyers to the fact that harassment and discrimination will not be tolerated within the Firm and are illegal; c. set out the types of behaviour that may be considered offensive and will not be tolerated; d. provide a procedure to deal with harassment and discrimination complaints; and
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e.
5.
outline the preventative, remedial and disciplinary actions that may be taken when a complaint of harassment or discrimination has been brought forward and/or substantiated.
This policy is not intended to constrain acceptable social interactions between people in the Firm.
Application of Policy 6.
7.
This policy applies to all staff, paralegals and lawyers of the Firm, whether part‐ time, full‐time or casual and to others in the work context, such as volunteers, articling students, co‐op students, dependant and independent contractors. The policy applies to employment relationships and professional dealings within the context of the legal work environment and includes dealings by and between partners, along with dealings related to the partnership.
8.
9.
The policy applies to every aspect of the legal work environment, including recruitment, selection, promotion, transfer, training, compensation and performance reviews. This policy covers any legal work‐related environment and professional dealings including, a. any place where the business of the firm is conducted or where social and/or other functions related to the business of the firm occur; b. activities that are incidental or connected to the business of the firm, including activities that are incidental or connected to the business of partners or the partnership; c. incidents that occur after the official business of a meeting but are incidental or connected to the meeting; or d. conduct outside the workplace which is likely to be prejudicial to the business of the firm.
Note: The application of the policy to all those in the work context (including volunteers), to all types of employment relationships (including partners), and to any legal work‐ related environment and professional dealings is consistent with Ontario human rights law.
23
Confidentiality 10.
To protect the interests of the persons involved, confidentiality will be maintained throughout the process to the extent practicable and appropriate under the circumstances except where disclosure is required by law or is necessary for a proper investigation and resolution of the matter.
Note If the policy is to be effective, confidentiality at every stage of the process is important. The absence of assurances of confidentiality may discourage individuals from using the policy. A statement of confidentiality is meant to protect the complainant, respondent and the firm. However, the nature of an investigation will necessitate some exceptions to the rule of confidentiality and a firm should include a statement to that effect in the policy.
Definitions 11.
“Discrimination” means a differential treatment, whether intentional or not, that imposes a disadvantage or a burden on a person or group of persons, or that results in the denial of a benefit to a person or group of persons, based on one or more of the prohibited grounds of discrimination. The differential treatment must result in the perpetuation of prejudice or reinforcement of stereotypes. (See Appendix A for examples).
12.
“Prohibited grounds” means any of the following: a. race; b. ancestry; c. place of origin; d. colour; e. ethnic origin; f. citizenship; g. creed (religion); h. sex (including pregnancy, breastfeeding and gender identity); i. sexual orientation; j. age (in employment, an age that is 18 years or more); record of offences (criminal conviction for a provincial offence, or for an k. offence for which a pardon has been received); l. marital status (including the status of being married, single, widowed, divorced, separated, or living in a conjugal relationship outside of marriage, whether in a same sex or opposite sex relationship); 24
m. n.
13.
family status (being in a parent‐child relationship); or disability (including mental, physical, developmental or learning disabilities).
“Harassment” means engaging in a course of vexatious comment or conduct against an individual in the workplace that is known or ought reasonable to be known to be unwelcome. The course of comment or conduct does not have to be based on one of the enumerated grounds. (See Appendix A for examples).
Threats, Reprisals or Retaliations and Bad Faith Complaints 14.
15.
Any staff, paralegal or lawyer of the Firm has the right to make a complaint or enforce his or her rights under this policy without threats, reprisals or retaliations. The Firm prohibits threats, reprisals or retaliations in relation to the policy and such actions will be treated in the same manner as harassment or discrimination. Any staff, paralegal or lawyer of the Firm who makes a malicious or bad faith complaint is in violation of the policy. A malicious or bad faith complaint means that a person has made a complaint under this policy that she or he knew was untrue. Submitting a complaint in good faith, even where the complaint cannot be proven, is not a violation of the policy.
PROCEDURES
Roles and Responsibilities 16.
17.
All members of the Firm are expected to uphold this policy by refraining from any form of harassment or discrimination, and by cooperating in any investigation of a harassment or discrimination complaint. Those with supervisory authority, including partners, have the additional responsibility to act immediately on observations or allegations of harassment or discrimination. They are responsible for creating a working environment that is free of harassment and discrimination and should address issues before they escalate.
18.
The Firm appoints [number of Advisors] staff, paralegals or lawyers as Advisors. The Advisors are neutral. They provide information about human rights and the 25
policy to any person who is concerned about possible harassment or discrimination within the Firm. Advisors are not advocates and do not provide legal advice. Advisors maintain confidentiality of communications, unless under a legal obligation to disclose the information by law or under this policy. Advisors who are made aware of harassment or discrimination that, if proven, would be in violation of this policy, will report the incident to the Equality Committee for consideration and inform the complainant of the action taken. Note: Appointed advisors under a policy are not investigators or decision‐makers. They help to clarify options available, answer questions and explain the policy. The role of advisors is important to the successful implementation of the harassment and discrimination policy, but the success of the policy depends on the choice of persons to fulfil this responsibility. An advisor should be well respected within the firm and be able to discuss a complaint with the complainant or respondent, regardless of that person’s seniority. He or she should be sensitive to the nature and effects of harassment and discrimination, and be trusted as a person who will observe the principles of confidentiality. The number of appointed advisors usually depends on the number of staff, paralegals and lawyers in the firm, in addition to the culture and structure of the firm. The appointment of more than one advisor allows staff, paralegals and lawyers to have choices when requiring the assistance of an advisor. To the extent possible, a law firm should appoint advisors that reflect the diversity and the hierarchical structure of the firm. An advisor should not condone harassment or discrimination. As a result, the policy suggests that, in instances where an advisor is made aware of harassment or discrimination that, if proven, would be a violation of human rights law, he or she should report the incident and inform the complainant of the action taken. A law firm may also appoint the Discrimination and Harassment Counsel (DHC) to be an advisor under the policy. If that is the case, however, the mandate of the DHC is limited to providing advice about harassment or discrimination by lawyers or paralegals. 26
The Equality Committee 24.
An Equality Committee is created. Members are appointed for a term of [numbers of years] years, renewable by the [name of management board]. The Equality Committee has no less than [number of] staff, paralegals or lawyers of the Firm. The Equality Committee is mandated to deal with complaints filed under this policy. Members of the Equality Committee must be knowledgeable of human rights law and principles, and of this policy and its application.
Note: The sample policy suggests that an equality committee be created to deal with complaints of harassment or discrimination. The creation of such a committee provides an avenue for complainants to proceed to a committee of appointees knowledgeable on human rights issues, who represent different sectors of the organization and who have decision‐making authority. Every effort should also be made to include members from diverse communities on the equality committee. In lieu of an equality committee, it may be appropriate for a firm to appoint one or more members to handle complaints under the policy. Another option could be to appoint an existing committee to handle complaints. Firms should take into account their culture and context to determine what process would be the least intimidating and to ensure that complaints are brought forward.
External Avenues 25.
While the Firm is committed to resolving incidents of harassment of discrimination internally, nothing in this policy precludes staff, paralegals or lawyers from pursuing other avenues, such as filing an application with the Human Rights Tribunal.
Initial Action by Complainant 26.
A person who considers that she or he, or someone else, has been subjected to harassment or discrimination (the complainant) is encouraged to bring the
27
matter to the attention of the person responsible for the conduct (the respondent). 27.
Where the complainant does not wish to bring the matter directly to the attention of the respondent, or where such an approach is attempted and does not produce a satisfactory result, the complainant may approach a [insert position such as group leader, supervising paralegal or lawyer, Human Resources, Advisor] to seek assistance.
Note: Directly approaching the person whose conduct has caused offence is usually the first step in a policy. Frequently, people are unaware that their conduct is offensive and all that is required to prevent its repetition is a simple statement that the conduct is unwelcome. However, power and status disparities between the respondent and the complainant may make it impossible or unreasonable for the complainant to approach the respondent. Therefore, such a first step should not be a mandatory step to the process. A firm may wish to stipulate a time limit for reporting a complaint. If that is the case, it may be desirable to abide by the time limit of the Code, which stipulates that an application may be made “within one year after the incident to which the application relates; or if there was a series of incidents, within one year after the last incident in the series.” The Code also allows a person to apply after the expiry of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. (see s. 34 of the Code) A firm may wish to include a clause to indicate that a complaint will not be dismissed simply because it has not been reported in a timely fashion. Frequently, fear of retaliation or embarrassment may cause a person to wait until the harassment or discrimination becomes unbearable before reporting the incident. The very act of having to report harassment or discrimination may also add to the individual’s distress. It has been shown that complainants often feel uncomfortable, embarrassed, or ashamed when they talk about personal incidents of harassment. Some may also feel 28
that they will be ignored, discredited, or accused of misunderstanding their superior’s intentions. Common reasons given for not reporting the incidents are that the complainant believes nothing would be done, that the complaint will be treated lightly or ridiculed or that the complainant will be blamed or suffer repercussions.
Informal Procedure 28.
Once a complainant has approached [insert position such as group leader, supervising paralegal or lawyer, Human Resources, Advisors] the [insert position such as group leader, supervising paralegal or lawyer, Human Resources] provides the complainant with a copy of this policy and advises the complainant of: a.
the right to lay a formal written complaint under this policy;
b.
the availability of counselling and other support services provided by the Firm;
c.
the right to be accompanied or represented by [legal counsel or other person of choice] at any stage of the process where the complainant is required or entitled to be present;
Note: If the firm allows the complainant or respondent to be accompanied by legal counsel, it may wish to specify whether the firm covers the costs of legal counsel and whether paralegals or lawyers from the firms are allowed to act for either the complainant or the respondent. d.
the right to withdraw from any further action in connection with the complaint at any stage; and
e.
other avenues of recourse available to the complainant, such as contacting the Discrimination & Harassment Counsel, contacting the Human Rights Legal Support Centre and/or filing an application with the Ontario Human Rights Tribunal, and where appropriate, any time limitations for filing an external complaint.
Outcome of Meeting 29.
Where appropriate, the [insert position such as group leader, supervising paralegal or lawyer, Human Resources, Advisors] will offer the parties an opportunity to informally resolve the issue. No person is required to try to resolve the issue informally.
29
30.
Where the complainant and the respondent are satisfied that they have achieved an appropriate resolution, the [insert position such as group leader, supervising paralegal or lawyer, Human Resources, Advisors] makes a confidential written record of the resolution and keeps it in a locked filing cabinet. The written record may be signed by both parties and both parties may also be given a copy of the resolution.
31.
The [insert position such as group leader, supervising paralegal or lawyer, Human Resources, Advisors] should follow‐up to ensure that the resolution is working.
Laying a Formal Complaint 32.
A formal written complaint is filed with the Equality Committee. (See Appendix B for template form). The Equality Committee appoints one of its own members (the Appointed Member) to investigate the complaint. Where the complaint involves a member of the Equality Committee, the member withdraws from the Equality Committee until such time as the matter is resolved or closed.
Investigation Process 33.
Any investigation process under this policy follows accepted principles of fairness, including the following: a.
impartiality;
b.
the right to know the allegation and the defence;
c.
the right to offer evidence and witnesses; and
d.
the right to rebut relevant evidence.
Internal Investigation 34.
The Appointed Member provides a copy of the complaint to the complainant and respondent, and interviews the complainant, respondent and witnesses.
35.
This procedure is completed within [insert number of days] days of receipt of the formal complaint, unless a longer period is appropriate in the circumstances and does not disadvantage either the complainant or respondent.
36.
The Appointed Member provides a written summary of findings which includes the allegations of harassment and discrimination, the facts and the findings, to the complainant and to the respondent. They each have one week of receipt of
30
the summary of findings to reply unless a longer period is appropriate in the circumstances and does not disadvantage the complainant or respondent. 37.
The Appointed Member files a formal report with the Equality Committee based on the summary of findings and on the replies from the complainant and the respondent. The formal report may also include recommendations on appropriate resolutions.
External Investigation 38.
The Equality Committee may, at any stage of the process, decide that there are reasonable grounds to proceed with an external investigation. In that case, it appoints a neutral third party to act as the external investigator. The external investigation follows the same process as the internal investigation described above.
Note: Since staff, paralegals and lawyers of the firm usually have the right to inspect the contents of their own personnel file, it is important, to protect the confidentiality of witnesses and others, that details of the investigation and the evidence not be kept in the personnel file. Only the outcome of the investigation should be recorded in the personnel file. Generally, the only person who has access to witness statements is the investigator. When the investigator provides his or her final report, he or she does not refer to witnesses by name.
Temporary Accommodation 39.
The complainant may, at any time after a formal complaint has been filed, make a request to the Equality Committee or to the Appointed Member for temporary accommodation until the complaint resolution process comes to an end and every effort will be made to reasonably accommodate the complainant.
Note: Temporary accommodation can include limiting contacts between the complainant and respondent by relocating the respondent to another area of the workplace or allowing the complainant to report to work with someone other than the respondent. One must be mindful that the complainant should not bear the inconvenience of job relocation.
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Care must be taken not to affect negatively the career development of the complainant as the process unfolds.
Action Taken Following Investigation 40.
Based on the outcome of the investigation, the Equality Committee, in conjunction with the appropriate level of management, makes a decision about whether the policy has been violated and what action will be taken as a result of the findings. The complainant and the respondent are informed of the outcome of the investigation and any decisions as to whether the policy has been violated.
Types of remedial action 41.
Based on the nature and severity of the violation, the remedial action may include an apology, education, counselling, verbal or written reprimand, transfer, a financial penalty, a suspension with or without pay or dismissal up to and including dismissal without notice. The remedial action may also include suspension or removal from the partnership.
42.
Disciplinary actions that involve a financial penalty, suspension or removal from the partnership will be approved by the [Executive Committee]. Suspension or removal of a partner must proceed in accordance with the provisions of the partnership agreement.
43.
Where the complaint is substantiated, the confidential outcome of the proceedings will be placed in the respondent’s personnel file. Where the complaint is not substantiated, no documentation under this policy will be placed in any respondent’s personnel file. All other documentation under this policy will be kept in a locked filing cabinet by the [Managing Partner].
Note: A remedy should be based on the nature and severity of the violation; the more serious the violation, the harsher the remedy. It should be noted that harassment and discrimination policies are usually remedial in nature and aim at establishing a workplace that is respectful. The resolution may include a reinstatement of the complainant if he or she was forced to terminate his or her employment due to harassment or discrimination, back pay for
32
wages lost, restoration of benefits that may have been denied or an apology to the complainant. Other remedial options include education and counselling for all parties, a verbal or written reprimand, a financial or monetary penalty as compensation for the humiliation, transfer of the harasser and in the most severe cases of a violation of the policy, a suspension with or without pay or dismissal up to and including dismissal without notice.
Harassment or Discrimination in the Provision of Services 44.
The Firm recognizes that its staff, paralegals and lawyers may be subjected to harassment or discrimination by individuals who are not staff, paralegals or lawyers of the Firm, such as clients or opposing counsel. The Firm acknowledges its responsibility to support and assist staff, paralegals and lawyers subjected to such harassment or discrimination and to do all it can to ensure that the behaviour stops.
45.
The Firm also prohibits harassment and discrimination in the provision of services to third parties, including clients, suppliers or service providers. The Firm acknowledges its responsibility to address such behaviour.
Note: Appeal Process and Other Avenues of Recourse The sample policy does not provide an appeal process. An appeal process will depend upon how disciplinary measures are normally appealed in the firm. If there are no internal appeal procedures, a respondent who has been disciplined can take the matter to court. A complainant should be informed of the right to file an application with the Human Rights Tribunal of Ontario if he or she is dissatisfied with the disposition of the complaint. A complainant may also be informed that the Discrimination and Harassment Counsel (DHC) for the Law Society of Upper Canada offers confidential advice to those who may have been subjected to harassment or discrimination by a lawyer or paralegal. The DHC works independently from the Law Society. The Services offered by the DHC are 33
available to anyone who has experienced discrimination or harassment by a paralegal or lawyer. The DHC can outline options for recourse and if both parties agree, attempt to resolve the complaint through mediation. While the DHC does not have investigative powers, nor does it operate a formal complaints process that involves fact‐finding, the DHC may be able to assist a complainant by intervening informally as a neutral facilitator or by conducting formal mediation, where appropriate.
34
Appendix A Examples of Harassment and Discrimination Note: It is not necessary to include examples of harassment or discrimination. However, some firms prefer to include examples to provide staff, paralegals and lawyers with some guidance regarding the types of behaviour that is inappropriate. Providing examples also serves to educate the firm. The following are examples of workplace discrimination and harassment, a
unwelcome remarks, jokes, slurs, innuendos or taunting based on a person’s place of origin;
b
interference with a person’s ability to perform his or her work responsibilities because of a person’s disability;
c
refusing to work or interact with a staff, paralegal or lawyer based on a person’s race;
d
sexist jokes causing offence;
e
sexually suggestive or offensive comments, remarks or gestures;
f
unwelcome physical contact, such as unwanted touching;
g
propositions of physical intimacy;
h
demands for dates or sexual favours, when a person knows or ought to know that they are unwelcome;
i
sexual and/or offensive e‐mail messages;
j
comments, signs, caricatures, or cartoons displayed in the workplace that depict minority racial or religious groups in a demeaning manner;
k
demeaning racial remarks, jokes or innuendoes about a staff, paralegal or lawyer told to other employees, and racist, derogatory or offensive pictures, graffiti or materials related to race or other grounds such as ethnic origin;
l
delivery of racist and/or offensive e‐mail message or exchange of racist and/or offensive message through any form of communication, including social media such as twitter or facebook;
m
repeated slurs directed at the language and accent of a particular group;
n
constant unwelcome remarks based on false assumptions about a person’s background or beliefs. 35
Appendix B Complaint and Response Forms Complaint Form under Workplace Harassment and Discrimination Policy I _________________ working as a __________________ in the (Name of complainant) (Title) __________________ have reasonable grounds to believe that ________________ (Practice Group) (Name of respondent) working as a _________________ in the __________________ (Title) (Practice Group) has discriminated/harassed against me in employment on or about ______________. (Date) The grounds of discrimination or harassment are: The particulars are as follows: Signed at: (place) ___________________________ on: (date) ______________ Complainant’s signature:_________________________________
36
Response Form under Workplace Harassment and Discrimination Policy I _________________ working as a __________________ in the (Name of respondent) (Title) __________________ have received a complaint signed by ________________ (Practice Group) (Name of complainant) working as a _________________ in the __________________ (Title) (Practice Group) alleging that I have discriminated/harassed against him/her in employment on or about ______________. (Date) The grounds of the alleged discrimination or harassment are: I deny the allegations and provide particulars as follows: Signed at: (place) ___________________________ on: (date) ______________ Respondent’s signature:_________________________________
37
CONSIDERATIONS FOR SMALL LAW FIRMS 43 The legal and professional responsibility to prevent and respond to workplace harassment and discrimination and the principles applicable in the effective implementation and review of the policy also apply to small law firms. Management of the firm should support the policy and ensure that it is clear, fair, known and applicable to everyone in the law firm. Even in the small law firm context, prospective new staff, paralegals and lawyers should be informed of the existence of the policy. Ongoing education and periodic review of the policy are also important. The biggest difference between small law firms and larger organizations is that smaller organizations will frequently have limited financial resources or personnel to adopt the same kind of processes as a larger law firm. This resource issue will impact what a policy for a smaller firm will look like. In lieu of an equality committee, smaller firms may wish to appoint one person, usually a senior member of the law firm, to implement the policy. He or she should be well positioned to be aware of situations of harassment or discrimination, be able to take action when necessary and set an example of appropriate firm behaviour. The senior member’s role may include interviewing the complainant, documenting the details of the complaint, identifying the remedy that is sought and whether the complainant wishes to proceed through mediation. It is suggested that small law firms provide staff, paralegals and lawyers of the firm with accessible information about what specific behaviour is unacceptable; the procedure if they want to make a complaint and the types of remedial or disciplinary actions that may be taken by the law firm.
43
Based on Anti-Harassment Policies for the Workplace: An Employer’s Guide (Ottawa: Canadian Human Rights Commission, December 2001).
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PART II – PREVENTING WORKPLACE VIOLENCE C.
OVERVIEW OF LEGAL PRINCIPLES
Under the Occupational Health and Safety Act (“OHSA”), employers in Ontario have an obligation to prepare a policy with respect to workplace violence and develop and maintain a program to implement the policy.44 For employers with more than five regular employees, the policies must be in written form.45 This guide includes a sample policy on preventing workplace violence, along with information about how to develop the policy and other legal obligations under the OHSA.
1.
Definitions
“Workplace” is defined under the OHSA as “any land, premises, location or thing at, upon, in or near which a worker works”. There are exceptions to this definition. For example, the OHSA does not apply to “work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith”.46 It is unlikely therefore, that the OHSA would apply to the work of a lawyer or paralegal working from home. “Workplace Violence” is defined in the OHSA as follows: • • •
the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker; an attempt to exercise physical force against a worker, in a workplace , that could cause physical injury to the worker; a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.
“Worker” is defined as a “person who performs work or supplies services for monetary compensation […]”.47 For the purpose of this guide, the term “employee” is used instead of the term “worker” and includes staff, paralegals and lawyers, including associates and partners of the firm. 44
Subsection 32.0.1 and subsection 32.0.2 of the OHSA supra note 4. Subsection 32.0.1(1) of the OHSA, ibid. 46 Section 1 and subsection 2(3)(1) of the OHSA, ibid. 47 Section 1 of the OHSA, ibid. 45
39
General Obligations Both employers and employees have obligations under the OHSA. Employers must, • • • • •
take every precaution reasonable in the circumstances to protect employees;48 provide information, instruction and supervision to employees to protect the health and safety of employees;49 provide assistance and co‐operation to a joint health and safety committee or health and safety representative;50 prepare and review, at least annually, the written occupational health and safety policy and develop and maintain a program to implement that policy;51 assess the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work.52
Employees must, • act respectfully towards other employees in the workplace and when participating in work‐related activities; • work in compliance with the OHSA;53 • not engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct; 54 • protect and ensure their immediate physical safety in the event of workplace violence and report the incident to the appropriate authority promptly (See Appendix C for examples of workplace violence); • cooperate with any efforts to investigate and resolve matters arising under the policy; • where applicable, keep their security access cards on their person or in a secure location; and • alert the security personnel of any suspicious situation or person in the confines of the facility.
48
Subsection 25(2)(h) of the OHSA, ibid. Subsection 25(2)(a) of the OHSA, ibid. 50 Subsection 25(2)(e) of the OHSA, ibid. 51 Subsection 32.0.1 (1) of the OHSA; Subsection 32.0.2 (1) of the OHSA, ibid. This applies to workplaces where five or more employees are regularly employed. See subsection 25(2)(j) of the OHSA, ibid. 52 Subsection 32.0.3 (1) of the OHSA, ibid. 53 Subsection 28(1)(a) of the OHSA, ibid. 54 Subsection 28(2)(c) of the OHSA, ibid. 49
40
2.
Developing and Maintaining a Program
In addition to the obligation under the OHSA to prepare a policy with respect to workplace violence and to review the policy as often as is necessary, but at least annually, the OHSA requires employers to assess the risks of workplace violence that may arise due to the nature of the workplace, the type of work or the conditions of work. The workplace violence program must include, • measures and procedures to control the risks that are identified in the employer’s assessment; • measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur; • measures and procedures for employees to report incidents of workplace violence to the employer or supervisor; • how the employer will investigate and deal with incidents or complaints of workplace violence; and • any other elements prescribed in regulations.55 In assessing the risk of workplace violence, an employer must, •
take into account the circumstances of the workplace and circumstances common to similar workplaces, as well as any other elements prescribed in regulation (See Appendices D and E for samples of workplace violence surveys to be completed by employees and supervisors);56
•
develop measures and procedures to control identified risks that are likely to expose a worker to physical injury;57 advise the joint health and safety committee or health and safety representative of the assessment results and if in writing provide a copy to the committee or representative;58 advise the employees of the assessment results, if there is no committee or representative and if in writing, provide copies of the assessment to the employees on request or advise the workers how to obtain copies;59 repeat the assessment as often as necessary to ensure the workplace violence policy and related program continue to protect employees from workplace
•
•
•
55
Subsection 32.0.2 (2) of the OHSA, ibid. Subsection 32.0.3 (2) of the OHSA, ibid. 57 Subsection 32.0.3 (2) (a) of the OHSA, ibid. 58 Subsection 32.0.3 (3) (a) of the OHSA, ibid. 59 Subsection 32.0.3 (3) (b) of the OHSA, ibid. 56
41
violence and inform the joint health and safety committee, health and safety representative, or employees of the results of the re‐assessment.60 The Developing Workplace Violence and Harassment Policies and Programs: What Employers Need to Know61 report (“What Employers Need to Know report”) produced by the Occupational Health and Safety Council of Ontario, recommends that the workplace violence prevention program include four steps: identifying the hazards of workplace violence, assessing the risks of workplace violence, controlling the risks of workplace violence through, for example the development of a policy, and monitoring and evaluating.62 Firms may also wish to consult the Developing Workplace Violence and Harassment Policies and Programs: A Toolbox for templates.63 In step 1, it is suggested that firms use information through a survey, focus group or other committees to, • • • •
identify the risks that employees perceive and their sense of personal safety in the workplace; consider the workers’ experiences with violence; identify jobs or locations in which workplace violence is a concern; and gather opinions about the effectiveness of the measures, procedures, and training in place.
Employers may also wish to review internal reports of incidents involving workplace violence. The samples of workplace violence surveys, to be completed by employees and supervisors, are precedents that can be used by law firms to assess the risk of workplace violence. Employers do not have to use the sample surveys, or any survey, to comply with the OHSA. In step 2, it is suggested that the employer assess the risks of violence in the workplace. The information gathered in step 1 will assist to identify whether there are jobs or locations in which violent incidents have already occurred, how employees feel about their safety at work and whether there are higher risks of workplace violence. In step 3, the report proposes that the employer adopt a workplace violence policy and program based on steps 1 and 2. 60
Subsection 32.0.3 (4); 32.0.3 (5) of the OHSA, ibid. At http://www.labour.gov.on.ca/english/hs/pubs/wvps_guide/index.php. 62 Ibid. at 9. 63 See http://www.labour.gov.on.ca/english/hs/pubs/wvps_toolbox/index.php. 61
42
The OHSA requires that employees receive information and instruction on the content of the policy and program, including the measures and procedures that apply to the work, and the complaint and investigation processes. The format for the instruction or training is not specified. It could be integrated into orientation training, health and safety training, anti‐harassment and anti‐discrimination training or it could be specific to workplace violence prevention training. In step 4, it is suggested that employers monitor and evaluate the workplace violence policy and program to ensure its effectiveness. The OHSA requires that employers review the policy as often as necessary, and at least annually. It also requires that the risks of workplace violence be reassessed as often as necessary in order to ensure that the policy and program continue to protect workers.
3.
Obligations related to Releasing Personal Information
An employer must ensure that an employee is provided with information, instruction and supervision to protect the health and safety of the employee.64 This includes the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour.65 Employers must limit this duty to circumstances where, • the employee can be expected to encounter the violent person in the course of his or her work; and • the risk of workplace violence is likely to expose the employee the physical injury.66 Employers and supervisors must also not disclose more information than is reasonably necessary for the protection of an employee from physical injury.67 Please note that the OHSA does not define a “history of violent behaviour”.
64
Subsection 25 (2) (a) of the OHSA, supra, note 4. Subsection 32.0.5 (3) of the OHSA, ibid. 66 Ibid. at (a) and (b), ibid. 67 Subsection 32.0.5 (4) of the OHSA, ibid. 65
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4.
Obligations related to Domestic Violence
Although the OHSA does not define domestic violence, the What Employers Need to Know report provides the following definition: “A pattern of behaviour used by one person to gain power and control over another person with whom he/she has or has had an intimate relationship. This pattern of behaviour may include physical violence, sexual, emotional, and psychological intimidation, verbal abuse, stalking, and using electronic devices to harass and control”.68 When employers are aware, or ought reasonably to be aware, that domestic violence may occur in the workplace, they must take every precaution reasonable in the circumstances for the protection of employees when it would likely expose an employee to physical injury.69 It is in the best interest of employers and employees to be able to recognize the signs of domestic violence. The document Recognizing Domestic Violence in the Workplace outlines some signs that may be noticed in the workplace.70
5.
Right to Refuse to Work
An employee may refuse to work or do particular work where he or she has reasons to believe that workplace violence is likely to endanger him or her.71 When that is the case, the employee must promptly report the circumstances of the refusal to his or her employer or supervisor who will investigate. Until the investigation is completed, the employee must remain in a safe place that is as near as reasonably possible to his or her work station; and available to the employer or supervisor for the purposes of the investigation. Where, following the investigation or any steps taken to deal with the circumstances that caused the employee to refuse to work, the employee has reasonable grounds to believe that the workplace violence continues to be likely to endanger him or her, the
68
Supra note 61 at 22. Subsection 32.0.4 of the OHSA, supra note 4. 70 See http://www.labour.gov.on.ca/english/hs/pubs/wvps_toolbox/toolbox_8.php 71 Section 43(3)(c) of the OHSA, supra note 4. 69
44
employee may continue to refuse to work and an inspector under the OHSA will be notified. The inspector investigates the refusal to work and decides whether a circumstance is likely to endanger the employee or another person. The inspector gives his or her decision, in writing, as soon as is practicable, to the employer and the employee. Pending the investigation and decision of the inspector, the employee remains, during the employee’s normal working hours, in a safe place that is as near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation. A person who refuses to work under the OHSA is deemed to be at work and the person’s employer shall pay him or her at the regular or premium rate.
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D.
SAMPLE POLICY – PREVENTING AND RESPONDING TO WORKPLACE VIOLENCE
The following is a sample policy that firms can use to develop their own policy. The sample policy includes the following: statement of principles, objectives and application of the policy. The procedures include informal procedures and formal procedures. Law firms are not obligated to adopt all or some of these options in their policies. Policies should be developed based on context and the culture of the firm. POLICY FOR ___________________________ (HEREINAFTER “THE FIRM”) Note: Square brackets “[ ]” are used throughout the sample policy to indicate that firms should include terminology or information relevant to their organization.
Statement of Principles 1.
2.
The Firm recognizes its obligations under the Occupational Health and Safety Act and is committed to, a. promoting a violence‐free workplace and protecting workers from workplace violence; b. investigating reported incidents of workplace violence in an objective and timely manner; c. taking necessary action to respond to incidents of workplace violence; and d. providing support to complainants. The Firm is committed to providing a work environment that promotes equality and ensures that all individuals are treated with respect and dignity.
3.
The Firm believes that violent behaviour in the work place is unacceptable and will not tolerate such behaviour. Regardless of seniority, individuals found to have engaged in behaviour constituting violence in the workplace may be severely disciplined.
Objectives 4.
The objectives of this policy are to, 46
a.
b. c. d.
educate employees, including staff, paralegals and lawyers about workplace violence and make them aware that workplace violence is considered a serious offence for which necessary action will be taken; encourage those subjected to workplace violence to access any assistance they may require in order to pursue a complaint; advise individuals of available recourse if they are subjected to, or become aware of, workplace violence; and make employees including staff, paralegals and lawyers aware that they must be committed to maintaining a healthy and safe work environment.
Definition of Workplace Violence 5.
“Workplace violence” means, a. the exercise of physical force by a person against an employee, in the workplace, that causes or could cause physical injury to the employee; b. an attempt to exercise physical force against an employee, in the workplace, that could cause physical injury to the employee; or c. a statement or behaviour that an employee can reasonably interpret as a threat of physical force against him or her, in the workplace.72
Application of Policy 6.
7.
8.
72
This policy applies to all staff, paralegals and lawyers of the Firm, whether part‐ time, full‐time or casual and to others in the work context, such as volunteers, articling students, co‐op students, dependant and independent contractors (“staff, paralegals and lawyers”). The policy applies to employment relationships and professional dealings within the context of the legal work environment and includes dealings by and between partners, along with dealings related to the partnership. This policy covers any legal work‐related environment and professional dealings including, a. any place where the business of the firm is conducted or where social and/or other functions related to the business of the firm occur; b. activities that are incidental or connected to the business of the firm, including activities that are incidental or connected to the business of partners or the partnership; c. incidents that occur after the official business of a meeting but are incidental or connected to the meeting; or See Appendix A for examples of workplace violence.
47
d.
conduct outside the workplace which is likely to be prejudicial to the business of the firm.
Note: The OHSA applies to workers, which is defined as a person who performs work or supplies services for monetary compensation. This definition does not cover, for example, a volunteer. Similarly, the definition of workplace covers any land, premise, location or thing at, upon, in or near which an employee works, but may not cover, for example, activities that are incidental or connected to the business of the firm. A firm may wish to draft its Workplace Violence Prevention Policy to make it consistent with its harassment and discrimination prevention policy and with the Code. This sample policy uses this approach and is drafted to be applicable to all those in the work context (including volunteers), to all types of employment relationships (including partners), and to any legal work‐related environment and professional dealings is consistent with the definition of employee.
Workplace Violence Prevention Committee and Representative 9.
10.
A Workplace Violence Prevention Committee (“the Committee”) is created. Members of the Committee are appointed for a term of [number of years] renewable by the [name of management board]. The Committee will address matters under this policy and related procedures. One member of the Committee will be designated as the Workplace Violence Prevention Representative (“the Committee Representative”). The Committee is responsible for, • assessing and reassessing as necessary the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work; • maintaining a copy of the assessment in writing; • providing staff, paralegals and lawyers with information and instruction on the content of the policy and programs with respect to workplace violence; • identifying and coordinating the education needs of staff, paralegals and lawyers under the policy; • developing workplace arrangements that minimize the risk of workplace violence;
48
• •
• •
taking every precaution reasonable in the circumstances for the protection of staff, paralegals and lawyers; providing staff, paralegals and lawyers with information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if the staff, paralegal or lawyer can be expected to encounter that person in the workplace and the risk of workplace violence is likely to expose the him or her to physical injury. The Committee shall refrain from disclosing more personal information in the circumstances than is reasonably necessary to protect the employee from physical injury; reporting on a yearly basis to staff, paralegals and lawyers on how the policy has been applied; and posting the policy in a conspicuous place in the workplace.
PROCEDURES
Immediate Response At no time should a staff, paralegal or lawyer remain in a conversation, situation or meeting in which workplace violence is occurring or in which he or she reasonably believes workplace violence is about to occur. When a number of Firm staff, paralegals and/or lawyers are involved in, or are witnesses to, an incident of workplace violence, their safety should be taken into consideration when addressing the workplace violence.
At the Firm’s Office If a staff, paralegal or lawyer of the Firm is concerned about or involved in a situation of workplace violence while at the offices of the Firm, he or she should immediately • remove himself or herself from the situation, where possible; • contact security personnel; • call 911 or the police in cases of imminent physical violence or if the circumstances warrant; and • report the matter to the Committee Representative at the earliest opportunity, and no later than the next day.
Working offsite If a staff, paralegal or lawyer of the Firm is working off‐site and he or she is concerned about or involved in a situation of workplace violence, he or she should immediately • remove himself or herself from the situation; 49
• •
call 911 or the police in cases of imminent physical violence or if the circumstances warrant; and report the matter to the Committee Representative at the earliest opportunity, and no later than the next day.
Report to the Committee The Committee Representative records and reports any incidence of workplace violence by filing an incident report with the Committee as soon as possible, and no later than the next day. 73
Duty to Report to Health and Safety Committee The Committee Representative informs the Health and Safety Committee of a violent incident within 4 days if the staff, paralegal or lawyer is incapacitated from performing his or her job or requires medical attention.
Duty to Report to Ministry of Labour If a workplace violence incident results in a person being killed or critically injured, the [Committee Representative or other person in authority at the Firm] • immediately notifies, by direct means such as telephone, a Ministry of Labour inspector, the workplace’s joint health and safety committee or health and safety representative and union, if any; and • within 48 hours notifies, in writing, a director of the Ministry of Labour, giving the circumstances of the occurrence and any information that may be prescribed.
Investigation Upon receipt of an incident report of workplace violence, the Committee determines whether there are reasonable grounds to proceed with an investigation under the policy. The investigation is conducted by one or more person appointed, either internally or externally, by the Committee to conduct the investigation. Any investigation is completed within six months, unless delays occur in good faith and no substantial prejudice results to any person affected by the delay. The investigation process follows accepted principles of fairness, including, • impartiality and objectivity; 73
See Appendix F for a sample workplace violence incident report form.
50
• • •
the right of the parties to know the allegation and the defence; the right of the parties to offer evidence and witnesses; and the right of the parties to rebut relevant evidence.
Once the investigation is concluded, a formal written report is filed with the Committee. The report includes the allegations of workplace violence, the facts and the findings. Based on the findings of the investigation, the appropriate level of management, makes a decision about whether the policy has been violated and what action, if any, will be taken as a result of the findings.
Domestic Violence If a supervisor becomes aware, or ought reasonably to be aware, of domestic violence that would likely expose a staff, paralegal or lawyer to physical injury and could occur in the workplace, the supervisor takes every precaution reasonable in the circumstances for the protection of the employee. In such circumstances, the supervisor should contact [security personnel or other measure that the Firm may have in place]. If a staff, paralegal or lawyer believes that he or she is at risk of domestic violence while at the Firm, he or she should inform [security personnel or other measure that the Firm may have in place] as soon as reasonably possible.
Retaliation and Malicious Complaints The Firm prohibits reprisal or threats of reprisal against anyone who makes use of this policy or takes part in an investigation under this policy. Action, which may include disciplinary action, will be taken against any person who retaliates against a staff, paralegal or lawyer who reports workplace violence. A malicious or bad faith complaint made under this policy will lead to action, and may include disciplinary action, against the responsible employee. It is however appropriate to file a complaint, even if the complaint is not successful, if the complaint is made in good faith.
Right to Refuse to Work A staff, paralegal or lawyer may refuse to work or do particular work where he or she has reasons to believe that workplace violence is likely to endanger himself or herself. 51
In such cases, the staff, paralegal or lawyer will promptly report the circumstances of the refusal to the Committee Representative who will investigate. Until the investigation is complete, the staff, paralegal or lawyer remains in a safe place that is as near as reasonably possible to his or her work station; and available for the purposes of the investigation. Where, following the investigation, the staff, paralegal or lawyer has reasonable grounds to believe that the workplace violence continues to endanger him or her, he or she may continue to refuse to work and an OHSA inspector will be notified to investigate and render a decision. Pending the investigation and decision, the staff, paralegal or lawyer remains, during normal working hours, in a safe place that is as near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation. A the staff, paralegal or lawyer who refuses to work under the policy will be deemed to be at work and will be compensated at the regular or premium rate as the case may be.
Types of Remedial Action Based on the nature and severity of the violation, the remedial action may include an apology, education, counselling, verbal or written reprimand, transfer, a financial penalty, a suspension with or without pay or dismissal up to and including dismissal without notice. The remedial action may also include suspension or removal from the partnership. Disciplinary actions that involve a financial penalty, suspension or removal from the partnership will be approved by the [Executive Committee]. Suspension or removal of a partner must proceed in accordance with the provisions of the partnership agreement. Where the complaint is substantiated, the confidential outcome of the proceedings will be placed in the respondent’s personnel file. Where the complaint is not substantiated, no documentation under this policy will be placed in any respondent’s personnel file. All other documentation under this policy will be kept in a locked filing cabinet by the [Managing Partner].
52
Other Avenues of Recourse An individual affected by workplace violence has the right to pursue their concern through alternate forums such as mediation, or other forms of dispute resolution. The policy does not prevent an individual from pursuing other remedies to an incident of workplace violence such as a criminal or civil action, an application to the Ontario Human Rights Tribunal or a complaint with the Law Society of Upper Canada.
Confidentiality To the extent practicable and appropriate under the circumstances, and subject to the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour, confidentiality is maintained throughout the process, including confidentiality of records of complaints, content of meetings, interviews, results of investigations and other relevant materials.
Assistance A Firm the staff, paralegal or lawyer with questions, concerns or a complaint regarding workplace violence may contact Committee members for help and advice.
Review The Firm will review this policy as often as necessary, but at least annually.
Appendix C Examples of Workplace Violence The following may be examples of workplace violence, a. verbally threatening to attack a employee;
53
b. c. d. e. f. g.
leaving threatening notes at or sending threatening e‐mails; shaking a fist in an employee’s face; wielding a weapon at work; hitting or trying to hit a colleague; throwing an object at a colleague; sexual violence against a colleague.74
74
Workplace Violence and Harassment: Understanding the Law (Toronto: Occupational Health and Safety Branch, Ministry of Labour, March 2010) at 1.
54
Appendix D
Sample Workplace Violence Survey to be Completed by Employees Adapted from the Workplace Survey of the Ministry of Labour75 The survey is used to ask employees about their perception of their safety in the workplace. Employers do not have to use this survey, or any survey, to comply with the OHSA. Department: Position: 1. Do you feel safe at work? 2. In your opinion, are there adequate measures to protect you from workplace violence? 3. If you answered no, please indicate whether the following areas require improvement: a. Lighting b. Security c. Restrictions on public access d. Security of restrooms e. Security of parking lots f. Emergency procedures 4. Have you been hit, pushed, physically assaulted, or otherwise attacked while working at the firm? a. If yes, where and when did the incident occur? b. Did you report the incident? c. How did you report the incident? d. Who assaulted or attacked you? 5. Have you been sexually assaulted or been the target of a sexual incident while working for the firm? a. If yes, where and when did the incident occur? b. Did you report the incident? c. How did you report the incident? d. Who assaulted or attacked you? 6. Have you been harassed (sexual harassment, insults, or bullying) while working at the firm? a. If yes, where and when did the incident occur? b. Did you report the incident? c. How did you report the incident? 75
http://www.labour.gov.on.ca/english/hs/pubs/wvps_toolbox/toolbox_2.php
55
7. 8. 9. 10. 11. 12. 13.
d. Who assaulted or attacked you? Are there procedures in place to report violent incidents? Are they easy to understand? Are they broadly accessible? Would you fear retaliation if you were to report workplace violence? Does your supervisor or manager react promptly to incidents of workplace violence? Are support programs in place to help you if you are directly or indirectly affected by workplace violence? Do you think you are prepared to handle a violent situation, at hreat, or escalating behaviours by clients?
The completion of this section is voluntary. Information gathered from this section will only be used for statistical analysis and to identify trends in workplace violence. Complete individual confidentially will be maintained. ___ Male ___Female Length of service ___ 1 year ___ 1 – 3 years ___ 3 –5 years ___ 5 – 10 years ___ more than 10 years
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Appendix E
Sample Workplace Violence Risk Assessment Survey to be Completed by Supervisors Date:
Completed By:
This form is designed to assist in identifying the potential risk of physical violence within your work area. It should be completed by a supervisor or designate.
Section 1: Work area Please indicate the work area your responses relate to in this document:
Section 2: History Are you aware of any incidents where employees in your department have experienced or been threatened with physical violence? No
Yes – Please describe
Section 3: Identifying higher‐risk activities Do employees in your department:
a) Handle cash or valuables?
No
Yes
b) Transport people?
No
Yes
c) Transport items of significant value?
No
Yes
d) Deal with the public?
No
Yes
e) Deal with people who may be under the influence of drugs or alcohol?
No
Yes
57
Section 3: Identifying higher‐risk activities f) Deal with people who are mentally ill, or otherwise troubled or distressed?
No
Yes
a) Perform security or related functions?
No
Yes
b) Perform duties that may result in a negative or confrontational response?
No
Yes
Comments:
Section 4: Factors that increase the risk of violence For areas whose employees meet with others (clients, lawyers, paralegals, suppliers, vendors, etc.) outside the Firm’s premises: a) Which departments/positions hold these types of meetings?
b) Where are these meetings held? (Check all that apply and provide details if appropriate) the other persons’ offices
the other persons’ homes
“Neutral” locations (coffee shop, restaurant, library, etc.) Other (please specify)
c) Are these meetings ever held outside business hours (8am – 6pm)?
No
Yes
Section 5: Prevention a) Which precautions have already been taken to reduce the risk of violence in your department? (Check all that apply and provide details) Physical/environmental controls
Administrative procedures
Violence prevention training
58
Section 5: Prevention Documentation/handouts
Other (please specify)
b) Does your practice group/department have a specific policy regarding reducing risk of violence in the workplace?
c) Do you feel that your practice group/department has taken all reasonable measures to reduce the risk of violence? If not, what further steps should be taken?
d) Do you feel that the Firm as a whole has taken all reasonable measures to reduce the risk of violence? If not, what further steps should be taken?
e) Do you have any other concerns with respect to workplace violence?
Section 6: Additional information If needed, any additional concerns or questions.
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Appendix F
Sample Incident Report Form76 Complainant Information ____________________ _____________________ ____________________ Last Name First Name Phone Number Date/Month/Year/ Location of Incident _____________________________ Time of Day: ____________________________ Respondent Information Name, if known: ______________________________________ Relationship: ___ Colleague ___ Client ___ Supervisor ___ Member of the Public ________________ Other (Please specify) Names of Witnesses and/or those providing assistance ____________________________________ ___ Colleague ___ Client ___ Supervisor ___ Member of the Public ________________ Other (Please specify) ____________________________________ ___ Colleague ___ Client ___ Supervisor ___ Member of the Public ________________ Other (Please specify) Description Give a thorough description of the incident (what happened, where it occurred, what led up to the incident, who else was present, what action was taken at the time, what impact the incident had on you). 76
Adapted from Guidelines for Drafting and Implementing a Workplace Violence policy & Sample Model Policy prepared by the Equality, Equity and Diversity Committee of the Law Society of Alberta in May 2004. It was adapted from the Government of Alberta’s Workplace Health and Safety Bulletin Preventing Violence and Harassment at the Workplace.
60
______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ ______________________________________________________ Medical Attention Required: ___ Yes ___ No
______________________________________________________ ______________________________________________________ Were the police or other law enforcement authorities contacted? ___ Yes ___ No
______________________________________________________ ______________________________________________________ Additional Comments
______________________________________________________ ______________________________________________________ The purpose of this form is to document your claim to assist in a thorough investigation of the complaint. ______________________________ ________________ Signature of person reporting incident Date Upon completion, please forward to: ______________________________ 61
Appendix G Resources and Tools on Workplace Violence Brian Kreissl, Andrew Treach and Judy Lutz, Bill 168 Implementation Guide (Toronto: Carswell, 2010) The Ministry of Labour resources include the following: • • • •
Developing Workplace Violence and Harassment Policies and Programs: What Employers Need to Know Developing Workplace Violence and Harassment Policies and Programs: A Toolbox Domestic Violence Doesn’t Stop When Your Worker Arrives at Work: What Employers Need to Know to Help Workplace Violence and Harassment: Understanding the Law
The Ministry of Labour’s resources are available at http://www.labour.gov.on.ca/english/hs/topics/workplaceviolence.php
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Appendix 2
Guide for the Provision of Legal Services in Cases Involving Claims of Sexual Abuse
Note: This Guide should be read in conjunction with the Guidelines for Lawyers Acting in Cases Involving Claims of Aboriginal Residential School Abuse available at http://rc.lsuc.on.ca/jsp/equity/guidelines‐for‐aboriginal‐ residential‐school‐claims.jsp
January 2012
63
I.
Purpose
The Guide for the Provision of Legal Services in Cases Involving Claims of Sexual Abuse (the “Guide”) is provided as a tool primarily to assist lawyers and paralegals who provide legal services to claimants acting in cases of sexual abuse where the claimants have, as an objective, the pursuit of compensation. The purpose of the Guide is to propose appropriate practices and to foster professional and ethical conduct in the representation of claimants in such cases.i The Guide was prepared, in part, in response to the recommendation of the Cornwall Public Inquiry that self‐governing professional bodies whose members are in contact with persons who may have been sexually abused “promote education in this field and, if appropriate, make amendments to relevant guidelines and standards related to professional competence”.ii The Guide, which is educational in nature, is meant to provide guidance for those acting for claimants in cases involving sexual above. It should be read in conjunction with the Rules of Professional Conductiii and the Paralegal Rules of Conduct.iv Reference may also be made to the Law Society of Upper Canada’s Practice Management Guidelines,v which offer practical tools to assist lawyers in assessing, maintaining and enhancing the quality of their service and to the Guidelines for Lawyers Acting in Cases Involving Claims of Aboriginal Residential School Abuse.vi The Guide is not intended to replace a lawyer’s or paralegal’s professional judgement or to establish a one‐size‐fits all approach to the practice of law in this area. Subject to the provisions in the Guide that incorporate legal, by‐law or rules of conduct requirements, 64
a decision not to follow the Guide will not, in and of itself, indicate that a lawyer or paralegal has failed to provide quality service. The circumstances of each individual case must always be considered and, in appropriate circumstances, it may be necessary to deviate from the Guide. In recognition of the fact that sexual abuse often constitutes a crime under the Criminal Code of Canada, the Guide is informed by the Ontario Victims’ Bill of Rights, 1995.vii This statute recognizes the following: Victims’ Bill of Rights, 1995 Persons “who have suffered harm and whose rights and security have been violated by crime should be treated with compassion and fairness.”viii “The justice system should operate in a manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.”ix Victims of crime should be “treated with courtesy, compassion and respect for their personal dignity and privacy by justice system officials.”x Victims of sexual assault are “presumed to have suffered emotional distress.”xi
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II.
Overview – Guiding Principles
The following three guiding principles should be taken into account when acting for claimants in sexual abuse cases: •
respect,
•
engagement, and
•
informed choice.xii
Their ultimate aim is to enhance access to quality justice in Ontario. It is incumbent on lawyers to recognize the gravity of abuse allegations for both the claimants and respondents. Accordingly, although the Guide applies primarily to lawyers acting for claimants in sexual abuse cases, it is also relevant to lawyers acting for respondents. Sexual abuse claims are both legally and factually complex. Lawyers who are retained to act for claimants in such cases should ensure that they have the necessary and requisite knowledge of these types of claims and claimants. Some background information and reference material available to assist lawyers in providing legal services to claimants are described in Appendix A. Lawyers should also be mindful of the Rules of Professional Conduct, and particularly the Rules that follow. Rule 1.03(1) (b) of the Rules of Professional Conductxiii addresses the responsibility of lawyers to “respect human rights laws in force in Ontario”. When providing legal services, lawyers should recognize that no one is to be denied services or receive inferior services because of a prohibited ground enumerated under human rights laws in force in Ontario. Lawyers acting for claimants in sexual abuse cases should take into account the fact that the vulnerability of claimants is often compounded by their 66
gender, age, race, ancestry, disability, sexual orientation or other human rights‐ protected personal characteristics. Lawyers should also be guided by Rule 4.01(1)xiv that states “When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.” In civil matters, it is important for lawyers to discharge their duty through fair and honourable means and in a way that promotes the parties’ right to a fair hearing. Rule 2.01 of the Rules of Professional Conductxv defines “competence”. There are various unique features to sexual abuse matters that inform the meaning of competence. These features affect what lawyers need to do to be competent, or become competent without undue delay, when they undertake to provide legal services to claimants in cases involving sexual abuse. Features specific to sexual abuse claims that have implications for the provision of competent legal services are best summarized by reference to the following: •
The unique needs of claimants of sexual abuse;
•
The unique demands on this claimant group; and
•
The multiplicity of forms of redress available to this claimant group.
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A.
The Unique Needs of Claimants of Sexual Abuse
The courts have consistently recognized sexual abuse to be distinctive.xvi It is distinctive by reason of its wrongful nature – that is, it is conduct that is intentional, inherently violent, represents an abuse of power, often reflects a betrayal of trust, and is an attack on a person’s dignity. It is also distinctive by reason of its harms which, in addition to any physical injury caused, typically involve profound and long‐lasting psychological damage that often manifests itself over time in various insidious and complex ways. Claimants in sexual abuse cases are often vulnerable and psychologically damaged. This vulnerability and damage stems not only from the abuse itself, but also from conditions that may have predated the abuse and served to make them more prone to being abused in the first place (e.g., dysfunctional and neglectful family environments in the case of childhood sexual abuse), and conditions which, while potentially related to the abuse, post‐date it, such as drug and alcohol dependency or re‐victimization by other abusers. Claimants in sexual abuse cases may exhibit protective and avoidant tendencies that can make it challenging for lawyers to represent them. They may also have anger management issues. They often have significant difficulties with trust, which can extend to difficulty trusting a legal professional who is in a position of relative power and privilege. Members of this client group are frequently isolated and stigmatized in society because of mental health problems, lack of resources, and feelings of powerlessness. Many are impoverished and live on the margins of society.
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Claimants in sexual abuse cases may be prone to engage in risky and harmful behaviours, particularly towards themselves. These behaviours, which include alcohol and drug abuse or other addictions, suicide attempts, anger management problems and aggression, mean that safety concerns related to claimants’ self‐harm are ever present when representing this client group. Claimants in sexual abuse cases may also be prone to aggression and harmful behaviours towards others, including those who are trying to help them. They may have a poor sense of appropriate boundaries. Such behaviours may be challenging for lawyers to manage. B.
The Unique Demands on this Claimant Group
Sexual abuse is rarely witnessed. There are also rarely any contemporaneous records that speak either to the actual incidents of sexual abuse, or their harmful consequences. The “invisible” nature of the psychological harms resulting from sexual abuse and the often delayed manifestation of some or all of the harms complicate the burden of proof to be met by claimants. Claimants’ lack of self‐esteem and confidence and the avoidant and destructive coping tendencies they often employ can make them particularly ill‐suited to the demands of the justice system. For example, they may experience difficulties recounting what happened to them in the chronological, detailed, confident and consistent manner preferred by justice officials. They may also lack the insight necessary to identify their problems and the causes of these problems. When cultural, linguistic, social class and
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other personal characteristics are added to the mix, the ability of claimants to prove their case can be even further impeded. Because claimants often delay confronting their abusers and the institutions that facilitated or are otherwise implicated in the abuse, the scope of the life events that are “relevant” in legal processes in which they engage can span many years and sometimes decades. This, in turn, may result in significant intrusions into claimants’ privacy rights as they are compelled to reveal highly personal details about themselves and disclose extensive personal and confidential records (e.g., medical, therapy, school, Children’s Aid Society (CAS), employment, criminal, etc.). C.
The Multiplicity of Forms of Redress Available to Claimants of Sexual Abuse
Sexual abuse is recognized as wrong in many branches of the justice system. This can give rise to multiple avenues of redress for individual claimants, depending on their particular circumstances, and result in overlapping legal processes. For example, sexual abuse that is proven beyond a reasonable doubt may constitute a number of different criminal offences under current and previous versions of the Criminal Code, which can lead to an abuser being punished, potentially with imprisonment. Sexual abuse may also constitute an actionable wrong in the civil courts and give rise to claims for compensation not only against an individual abuser, but also others who employed or had charge of the abuser or claimant, or were otherwise implicated in the abuse, and possibly their insurers. The following are examples of legal processes, aside from criminal and civil court cases, that may be available to claimants:
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•
disciplinary proceedings by self‐governing bodies against member professionals such as teachers or health care providers, which can result in significant sanctions (e.g., revocation of a license);
•
human rights proceedings, such as under the Ontario Human Rights Code, or, in the federal sphere, under the Canadian Human Rights Act, and yield compensation and/or other relief under those statutory regimes;
•
alternative forms of compensation, funding or benefits from a government agency or regulatory body, such as, the Ontario Criminal Injuries Compensation Board;
•
the Workplace Safety and Insurance Board;
•
the federal government’s and churches’ court‐sanctioned Indian residential school alternative dispute resolution process;xvii
•
provincial settlement packages;xviii or
•
governing health profession, e.g. the College of Physicians and Surgeons of Ontario and the College of Psychology make limited therapy funding available to patients who have suffered sexual misconduct by its physician members.
Sexual abuse can also represent a breach of contract or a breach of internal rules and/or policies, such as a collective agreement in a unionized workplace, or the internal rules of a religious entity (e.g., Canon Law in the Roman Catholic Church). It can be contrary to an internal workplace harassment or anti‐violence policy. These violations can give rise to still further legal processes and forms of redress/punishment. The above discussion is by no means intended to be exhaustive, but rather to highlight the breadth of the potential knowledge required by lawyers providing competent and quality legal services cases involving claims of sexual abuse. 71
III.
Practice Tips
For ease of reference, the practice tips outlined below have been divided according to headings that reflect their primary (though not necessarily only) focus. These headings are: •
Competent Service,
•
Communications, and
•
Safety Considerations.
A.
Competent Service
Given the complexity and multi‐faceted nature of sexual abuse cases, lawyers who provide legal services to claimants should have or acquire, and maintain, the knowledge, skill, time and means to do this work effectively and responsibly. This includes being appropriately prepared for and supported when responding to the heightened emotional demands, and preparing and supporting staff for such eventuality. Lawyers are encouraged, for example, to provide access to employee assistance programs and counselling for lawyers and staff. It is also good practice to ensure that new staff members and lawyers are informed in advance of the heightened emotional demands that will often be placed on them. Complex demands of sexual abuse cases may place a practical limit on the ability of lawyers acting for claimants to take on these cases and/or on the number of such cases they can competently and responsibly take on at any one time. Competent service includes being cognizant of the different avenues of redress available to claimants, how these various processes interact with one another, and whether there are limitation periods that may operate to bar claims.
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Being competent includes knowing the law and the unique nature of these cases. Lawyers may wish to educate themselves or gain an understanding of the following, if relevant: •
How and why progressive disclosure of abuse by claimants may occur.xix This means being accepting of claimants who make progressive disclosure and not discounting or disparaging this disclosure, notwithstanding that it may reflect or appear to reflect inconsistency in a claimant’s prior account of events and experiences. In such cases, the lawyer may wish to prepare claimants for how progressive disclosure may be perceived and/or responded to by other participants in the justice system. It is important to foster and maintain lines of communication to avoid surprises from claimants and to be in a position to respond effectively to expanded allegations by claimants. It may also be helpful for defence lawyers to familiarize themselves with the concept of progressive disclosure.xx
•
Gain an appreciation for “recovered traumatic memory”. A lawyer facing a situation in which a claimant claims to have recalled an experience of sexual abuse decades after the incidents occurred may have to determine whether the memory of these incidents was consciously suppressed (in which case the process of memory retrieval is not likely an issue), or was unconsciously blocked and then recovered. In the latter case, lawyers should be prepared to learn about the process of traumatic memory recovery by engaging appropriate experts (typically psychologists who are traditionally the experts on the workings of memory).
•
Understand issues surrounding the admissibility of hypnotically‐revived memory.
•
Understand issues that arise when multiple clients were abused by the same person(s) and/or abused in the same context or environment. In those cases it is important for lawyers to give careful consideration to the best method of proceeding. This can include multiple individual proceedings, a multi‐claimant proceeding (e.g., group lawsuit), a class action or an alternative dispute resolution 73
process. To assist claimants in making informed choices about how to proceed, lawyers may need to explain to claimants the relative advantages and disadvantages of each method of proceeding, including comparative delays, expense and ability to meet claimant objectives. •
Where there are settlement negotiations, one should be careful not to further isolate claimants or to leave claimants without supports, or deny appropriate healing opportunities as a result of a settlement, if this can be avoided. As much as possible, claimants should also not be left with the sense that what happened to them is shameful and secret and/or that they are influenced into remaining silent, as this may be experienced as degrading and cause further distress. Claimants’ freedom of expression and choice as to whether to speak about their abuse and/or the harms flowing from the abuse should be respected to the fullest extent possible.
•
As many claimants have objectives, or “healing and reconciliation” needs,xxi that extend beyond simple monetary compensation (e.g., preventing a repetition of their abusive experiences by others), lawyers acting for them may want to look for opportunities to advance claimants’ non‐monetary goals.
B.
Communications
The following Rules of Professional Conduct may be relevant: Rules 4.01(2)(k) “When acting as an advocate, a lawyer shall not needlessly abuse, hector, or harass a witness”.xxii In sexual abuse cases where claimants are vulnerable, lawyers on both sides should take particular care not to take unfair or improper advantage of the circumstances.
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Rule 4.01(6), which states “A lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation”, xxiii may also apply. Lawyers should avoid being rude, provocative or disruptive in the course of litigation. Lawyers should also be mindful that sensitivity should be accorded to claimants who are under a disability (as defined by Rule 1.03 of the Rules of Civil Procedure). In the case of minors, it is important that a minor be aware of the intention to commence proceedings, and be engaged in the process to the extent feasible. Lawyers who accept these retainers are encouraged to meet and/or communicate with the minor(s) as early and as often in the proceedings as is feasible. Such meetings and communications usually give the lawyer an opportunity to begin to form an appropriate relationship of trust with the claimant, and to provide the claimant with a level of awareness and engagement, as appropriate to the claimant’s level of maturity and ability to comprehend. These interactions may also help the lawyer gauge whether the claimant is comfortable with the proceeding or whether the parent or litigation guardian is taking a course of action with which the claimant is uncomfortable. Where no suitable adult is available to act as litigation guardian, lawyers are reminded to contact the Office of the Children’s Lawyer for assistance.xxiv The same comments apply to lawyers representing claimants with mental disabilities or challenges, and who require a litigation guardian. In the event no suitable adult is available to act as a litigation guardian, lawyers are reminded to contact the Office of the Public Guardian and Trustee.xxv
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In either situation, it is important that the lawyer undertake his/her own assessment of the claimant’s ability to understand and relate to what is being said to her/him, no matter what the disability is, and then attempt to communicate with the claimant so the claimant is as engaged in the process as possible. Because of the betrayal of trust experienced by many claimants and the fact they have had power and control taken away from them by virtue of the abuse they have suffered, lawyers interacting with this vulnerable client group (i.e., lawyers on both sides) should endeavour to ensure their communications with claimants are at all times respectful. This means not being judgmental, inappropriate, insensitive or inattentive when communicating with claimants. Lawyers acting for claimants should also approach the alleged perpetrators of abuse with civility and respect.xxvi Lawyers should also be mindful of Rule 4.01(4) (c) which states “Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.” Lawyers should proceed carefully when initiating contact with potential victims in sexual abuse cases, whether these are potential clients or witnesses (e.g., similar fact witnesses). This includes clearly identifying who they are and what their purpose or interest is. Where possible, lawyers should meet with claimants in person. Subject to considerations of client confidentiality and privilege, lawyers representing claimants should be open to the presence of support persons, whether personal or professional, at all stages of the retainer. Where this happens, however, they also need 76
to be mindful that the instructions they receive are from the claimants themselves and not from others serving as their proxies. Lawyers may wish to explore with claimants, especially before the retainer relationship is established, the claimants’ expectations of the legal process(es). This means determining what the claimants’ objectives are. It also means advising claimants of what the justice system can and cannot deliver, and what considerations and factors may impact on the likely success or failure of a legal process. It is important to be forthright and frank in explaining the significant intrusions on personal privacy that claimants may expect as the ones who bear the burden of proof in the legal process, and what reasonable efforts, if any, can be made to limit such intrusions and what the associated risks and/or costs of doing so are. For example, whether it may be necessary or prudent to conceal a claimant’s identity through the use of a pseudonym or initials if legal action is to be taken is something that might need to be considered. Claimants in sexual abuse cases often do not appreciate that the personal matters they must disclose, both themselves directly and through the production of documents (e.g., school, medical, therapy, CAS, employment, income‐related, criminal, etc.), extend well beyond the actual incidents of abuse themselves. Disclosure may also address how they have or have not been impacted by the abuse and/or by other adverse events in their lives. If not prepared for such intrusion into their personal affairs, claimants can experience the probing by their own lawyers, opposing lawyers and experts as an attack on them and feel overwhelmed and discouraged by the process. It is important for lawyers representing claimants to explain why questions about highly personal matters like intimate relationships, their sexuality and other aspects of their social and personal 77
functioning may be relevant. Lawyers may also wish to consider whether limits might apply to what has to be disclosed, rather than simply assuming everything is to be disclosed. Lawyers for claimants should endeavour to make their communications, written and verbal, as accessible as possible to claimants, depending on particular claimants’ needs and abilities – which could include language and cultural factors. Lawyers should make all reasonable efforts to ensure claimants’ comprehension, which includes, as appropriate, inviting questions from claimants and taking the time to answer these. In multi‐claimant proceedings, such as a group lawsuit, a class action, or an alternative dispute resolution process designed to address grievances and respond with appropriate redress on a large scale, lawyers acting for claimants should be particularly mindful of the need to foster and maintain effective lines of communication with claimants. This includes the development of an effective reporting mechanism so that claimants not only receive timely and consistent information and have opportunities to raise general questions, but also have avenues in which to have their specific needs and interests addressed. Rule 3.01(2) of the Rules of Professional Conductxxvii prohibits lawyers from using marketing materials that are false or misleading, amount to coercion or harassment, or take advantage of a person who is vulnerable or has suffered a traumatic experience from which he or she has not yet recovered. Lawyers should ensure, in compliance of Rule 2.08 of the Rules of Professional Conduct,xxviii that the method(s) of calculation of fees and disbursements charged to
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claimants is (are) clearly communicated to them prior to entering a retainer relationship and thereafter as necessary. Lawyers are reminded that the Rules of Professional Conduct set out strict prohibitions regarding fee sharing, splitting or division with a person who is not a licensee. Similarly, lawyers are prohibited from giving any financial or other rewards to any persons who are not “licensees”xxix for the referral of clients or client matters. See Rule 2.08(8) of the Rules of Professional Conduct.xxx C.
Safety Considerations
Because of the ever‐present risk of harm to this psychologically fragile group of claimants, lawyers acting for claimants may wish to review, at the beginning and throughout their retainers, the personal and professional supports available to their clients and, where possible and appropriate, encourage and/or assist them to seek out the supports they need to safeguard their health and well‐being. While bearing in mind client confidentiality and privilege considerations, it may be prudent for lawyers to liaise with claimants’ support networks as necessary to promote claimants’ safety and well‐being. Lawyers should be sensitive about how, when, in what form and forum, how often and to whom claimants are required to recount their abusive experiences given that doing so may cause claimants to “relive” their abuse, which in turn can put them at risk of harm. Where minors have been sexually abused and guardians seek to initiate legal processes on their behalf, lawyers should proceed cautiously as to the timing of engaging a legal process and be aware of the potential for a conflict of interest as between minors and 79
their guardians. It is particularly important that minors who have been sexually abused have robust supports in place, both of a personal and professional nature. The same considerations apply to persons who are mentally disabled or challenged. Lawyers and staff members who routinely practice in this area may suffer from “secondary trauma” or “burnout” and should be cognizant of their own health: “Common signs to watch out for are feelings of powerlessness, anxiety, guilt, anger/rage, shutdown of feelings or emotional numbness, fear, helplessness, sadness, general depletion and hypersensitivity”.xxxi
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Checklist When representing claimants in cases involving sexual abuse, you may wish to consider the following: where possible, meet with claimants in‐person, particularly before establishing a retainer relationship finalize the retainer agreement before taking steps on behalf of claimant follow the Rules of Professional Conduct on communicating the method(s) of calculation of fees and disbursements charged to claimants is (are) avoid fee splitting/sharing arrangements and financial incentives for client referrals with non‐licensees review the personal and professional supports available to claimants be forthright and frank in explaining the very significant intrusions on personal privacy that claimants can expect and what reasonable efforts, if any, can be made to limit such intrusions and the associated risks and/or costs of such efforts in multi‐claimant proceedings, ensure that effective lines of communication with claimants are fostered and maintained have or acquire and maintain the knowledge, skill, time and means to do this work effectively and responsibly be cognizant of the different avenues of redress available to claimants, how these various processes interact with one another, and whether there are limitation periods that may operate to bar claims be sensitive about how, when, in what form and forum, how often and to whom claimants are required to recount their abuse 81
Appendix A: Recommended Background Resources to Assist those Involved in the Provision of Legal Services in Cases of Sexual Abuse General Information Victims’ Bill of Rights 1995, S.O. 1995, c.6, as amended. Law Society of Upper Canada, Guidelines for Lawyers Acting in Cases Involving Claims of Aboriginal Residential School Abuse, (Toronto: Law Society of Upper Canada, 2003) online at http://rc.lsuc.on.ca/pdf/equity/guideline_aboriginal_res.pdf. Ontario, Report of the Cornwall Inquiry, especially Volume 4, Phase 1 and 2 Executive Summary (Toronto: Queen’s Printer, 2009), online at http://www.attorneygeneral.jus.gov.on.ca/inquiries/cornwall/en/report/index.html. Daylen, J., van Tongeren, H. and O’Toole, D., Trauma, Trials and Transformation: Guiding Sexual Assault Victims Through the Legal System and Beyond (Toronto: Irwin Law, 2006). Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Ottawa: Law Commission of Canada, March 2000). Grace, E., “Judging Cause and Effect: Challenges and Trends in Assessing Damages in Sexual Abuse Cases”, in Law Society of Upper Canada, Special Lectures 2005: The Modern Law of Damages (Toronto: Irwin Law, 2006), at 177‐264 and especially at 182‐199. Vella, S. and Grace, E. “Pathways to Justice for Residential School Claimants: Is the Civil Justice System Working?”, in Magnet, J. and Dorey, D., eds., Aboriginal Rights Litigation (Toronto: LexisNexis Butterworths, 2003), at195‐273 and especially at 195‐199 and 210‐ 214.
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Organizations Assaulted Women’s Help Line, 416‐863‐0511, www.awhl.org The Assaulted Womenʹs Helpline provides a 24‐hour crisis line for women. It allows women to reach out for help, assured of their anonymity and confidentiality. .A telephone counsellor provides immediate crisis counselling, safety planning, as well as referrals to local agencies and support for the ongoing struggle to name and act against abuse. Counsellors never meet clients face to face as this is a telephone service only. The helpline seeks to improve barriers to service for immigrant and refugee women, women living with disAbilities, Aboriginal women, lesbians, bi‐sexual women, trans‐gendered women and women of colour by referrals to culturally, linguistically, and “community appropriate” agencies. Service is provided in up to 154 languages. Deaf and hard of hearing women are served through the TTY line. Canadian Association of Sexual Assault Centres www.casac.ca
CASAC is a Pan Canadian group of sexual assault centres who have come together to implement the legal, social and attitudinal changes necessary to prevent, and ultimately eradicate, rape and sexual assault. As feminists we recognize that violence against women is one of the strongest indicators of prevailing societal attitudes towards women. The intent of the Canadian Association is to act as a force for social change regarding violence against women at the individual, the institutional and the political level. The Hospital for Sick Children (suspected child abuse and neglect), 416‐813‐6275,
www.sickkids.ca Indian Residential Schools Resolution Health Support Program The Indian Residential Schools Resolution Health Support Program provides mental health and emotional support services to former Indian Residential School students and their families before, during and after their participation in Settlement Agreement processes, including the Common Experience Payments and the Independent Assessment Process, and those participating in Truth and Reconciliation Commission events and Commemoration activities. Information available at http://www.hc‐ sc.gc.ca/fniah‐spnia/services/indiresident/irs‐pi‐eng.php. Ontario contact: 3rd Floor, 83
Emerald Plaza, 1547 Merivale Road, Nepean, Ontario, K1A 0L3, Telephone (toll‐free): 1‐ 888‐301‐6426, Teletypewriter: 1‐800‐267‐1245 (Health Canada) Kids Help Phone, 1‐800‐668‐6868, www.kidshelpphone.ca, includes phone counselling
and web counselling for ages 20 and under. It is a free service that operates 24/7. It is anonymous, confidential and non‐judgemental. Metropolitan Action Committee on Violence Against Women and Children,
www.metrac.org METRAC works to prevent and eliminate violence against diverse women, youth and children. It is committed to the right of women, youth and children to live free of violence and the threat of violence. METRAC uses an integrated, multi‐disciplinary approach and works in partnership with individuals, community groups, organizations and services, governments, institutions, educators, urban planners and health and legal professionals.
Oasis centre des femmes http://www.oasisfemmes.org/ Oasis offre des services de soutien et d’accompagnement en matière d’agression sexuelle et de violence conjugale ainsi que dans la recherche d’emploi et d’entreprenariat, pour les femmes francophones de 16 ans et plus, pouvant être touchées par la violence sous toutes ses formes. Oasis offre aussi des services de sensibilisation, prévention et d’éducation sur la violence faite aux femmes et les agressions à caractère sexuel pour la communauté, ainsi que des activités sociales pour briser l’isolement des femmes. Ontario Coalition of Rape Crisis Centres, http://www.sexualassaultsupport.ca/Default.aspx?pageId=418508
The objective of the Ontario Coalition of Rape Crisis Centres is to work for the prevention and eradication of sexual assault, including rape. The Coalition works to implement legal Social and attitudinal changes. In order for women of this country to acquire the power necessary to bring about such changes, they must organize their collective strengths in the anti‐sexual assault movement. The Coalition is itself the collective efforts of the individuals and groups involved. The Coalition in no way substitutes for the work of autonomous Rape Crisis Centres and actively encourages growth and development of new centres. It will provide a mechanism for communication, education and mobilization to alleviate the political and geographical isolation of all centres in Ontario.
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Ontario Network of Sexual Assault/Domestic violence Treatment Centres, http://www.satcontario.com/en/services.php
The members of the network have significant expertise in the fields of sexual assault and domestic violence. In addition to working with victims and survivors of sexual assault and domestic violence on a daily basis, the members are also involved in lobbying for change, establishing standards for service delivery across the province and training and collaborative research. Ontario Women’s Directorate, http://www.citizenship.gov.on.ca/owd/english/women/need.shtml
The Ontario Women’s Directorate (OWD) celebrates the strengths, achievements and diversity of women throughout Ontario. It works with community partners to help women achieve financial independence and safety from violence by building relationships with our partners throughout Ontario. Toronto Area Gays and Lesbians Phone Line and Crisis Counselling, 416‐964‐6600,
http://www.connexions.org/Groups/Subscribers/CxG5578.htm Purpose: To provide information on the gay, lesbian and bisexual community; to To provide information on gay, lesbian and bisexual community; to provide counselling to those who are or think they might be gay, lesbian or bisexual. Toronto Police Services, 416‐808‐2222, www.torontopolice.on.ca Toronto Police sex crimes unit, www.torontopolice.on.ca/sexcrimes
Toronto Rape Crisis Centre, 416‐597‐8808, www.trccmwar.ca TRCC/MWAR is a
grassroots, women‐run collective working towards a violence‐free world by providing anti‐oppressive, feminist peer support to survivors of sexual violence through support, education and activism. i
Note: The Guide uses the term “lawyers”, but applies equally to paralegals when they are providing legal services in the context of authorized activities. To determine the scope of paralegal authorized activities in cases involving claims of sexual abuse, please consult relevant laws, by‐laws and regulations. Section 6 of By‐law 4 – Licensing ‐ outlines paralegals’ authorized activities when providing legal services. The By‐law is available at http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=5275 ii The Cornwall Public Inquiry was established by the Ontario government in 2005, with a mandate that included inquiring into and reporting on “the institutional response of the justice system” in relation to allegations of historical abuse by young people in the Cornwall area”. See vol. 4 at 1. The Cornwall Inquiry Report is available online at http://www.attorneygeneral.jus.gov.on.ca/inquiries/cornwall/en/report/index.html.
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iii
In effect November 1, 2000, as amended, available online at http://www.lsuc.on.ca/with.aspx?id=671. In effect May 1, 2007, as amended, available online at http://www.lsuc.on.ca/with.aspx?id=1072. v The Practice Management Guidelines are available online at http://rc.lsuc.on.ca/jsp/pmg/executiveSummary.jsp. vi Adopted by Convocation in October 2003. Available online at http://rc.lsuc.on.ca/pdf/equity/guideline_aboriginal_res.pdf. vii Victims’ Bill of Rights 1995, S.O. 1995, c. 6, as amended. viii Ibid, preamble. ix Ibid, preamble. x Ibid, s. 2(1). xi Ibid, s. 3(2). xii The Law Commission of Canada, at the request of the federal Minister of Justice, undertook a comprehensive assessment of the various redress processes, existing and potential, for addressing harms caused by institutional abuse, which included sexual and physical abuse of children who were institutionalized. Among the evaluative criteria used by the Commission were the principles of respect, engagement and informed choice. This Guide seeks to give expression to the same principles. Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Ottawa: Law Commission of Canada, March 2000), see especially pages 105‐107. xiii In cases involving paralegals, see Rule 2.03 of the Paralegal Rules of Conduct. xiv In cases involving paralegals, see Rule 2.03 of the Paralegal Rules of Conduct. xv In cases involving paralegals, see Rule 3.01 of the Paralegal Rules of Conduct. xvi The Supreme Court of Canada notes “It is hard to imagine a greater affront to human dignity than non‐ consensual sexual intercourse” Norberg v. Wynrib, [1992] 2. S.C.R. 226 per La Forest J. at 265. In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 per La Forest J. at 17 recognizes that “The damages wrought by incest are peculiarly complex and devastating, often manifesting themselves slowly and imperceptibly…”. See also M.C. v. F.M. (1991), 46 C.P.C. (2d) 254 (Ont. Gen. Div.) per Keenan J. at 264; R. v. Osolin, [1993] 4 S.C.R. 595 per Cory J. at 669; S. (J.) v. Clement (1995) 122 D.L.R. (4th) 449 (Ont. Gen. Div.) per Lang J. at 520; and Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 (Gen. Div.) per MacFarland J. at 532. xvii For information about Indian Residential Schools Resolution Canada see http://www.tbs‐sct.gc.ca/dpr‐ rmr/2007‐2008/inst/ira/ira01‐eng.asp#section1_1. xviii For example, in the Grandview Training School for Girls case, a precedent setting “healing package” was reached which included an apology from the Government of Ontario, various forms of compensation, and “in kind” benefits which were provided to women who, as girls, suffered physical, sexual and psychological abuse by staff. In the cases of widespread physical and sexual abuse at the St. John’s Training School and St. Joseph Training School for Boys, the Roman Catholic Church and the Ontario government concluded a settlement including a compensation package, formal apologies, counselling and an “Opportunity Fund” which provided medical and dental coverage, job training, literacy training and other education for victims. Other examples of funds created by churches include the United Church’s Healing fund, which was established as a way to live out the Church’s 1986 Apology to First Nations. The fund is being used to support many innovative and effective programs in Aboriginal communities to help in the healing process. The Church also created a Justice and Reconciliation Fund to assist the Church to understand the iv
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respond to the legacy of harm and broken relationships that have resulted from the Indian Residential School system. xix The Report of the Cornwall Inquiry identifies the justice system’s lack of understanding about how memory functions, particularly in historical abuse cases, as an obstacle to survivors of sexual abuse. It notes that, whereas the justice system favours as more accurate and reliable witnesses who are confident and not hesitant about recounting past events, memory can be fragmented. Report of the Cornwall Inquiry, supra note 2, vol. 4 at 7. For this and other reasons that include the shame that surrounds abuse and the reluctance claimants can feel about talking about their abusive experiences, especially to strangers, disclosure of abuse by claimants may be “progressive”, meaning that new added details about the abuse are disclosed over time, including subsequently disclosed further incidents of abuse. xx The Indian Residential Schools Independent Process Rule Book expressly acknowledges that progressive disclosure is “a possible explanation for inconsistencies”. See p. 13 of the Schedule “D” to the Indian Residential Schools Settlement Agreement. Available online at http://www.residentialschoolsettlement.ca/Schedule_D‐IAP.PDF xxi The Cornwall Public Inquiry was mandated “to inquire into and report on processes, services or programs that would encourage community healing and reconciliation in Cornwall”, and as a result, it devoted Volume 2 and part of Volume 4 of its report to consideration of these issues. Report of the Cornwall Inquiry, supra, note 2, Vols. 2 and 4. Healing and reconciliation are important considerations in sexual abuse cases that can apply not only at a community level, particularly where abuse and its harms have been widespread, but also at an individual level. xxii In cases involving paralegals, see Rule 4.01(j) of the Paralegal Rules of Conduct xxiii In cases involving paralegals, see Rule 2.01 (2) of the Paralegal Rules of Conduct. xxiv For more information about the Office of the Children’s Lawyer, please consult the online site at http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/. xxv For more information about the Office of the Public Guardian and Trustee, please consult the online site at http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/ xxvi John Morris, a senior partner at Borden Ladner Gervais, called for greater civility from lawyers of both the claimants and defendants in this area in 2001 when speaking at a Canadian Institute Conference. xxvii In cases involving paralegals, see Rules 8.02 and 8.03 of the Paralegal Rules of Conduct xxviii In cases involving paralegals, see Rule 5 of the Paralegal Rules of Conduct. xxix “Licensee” means, a person licensed to practice law in Ontario as a barrister and solicitor, or a person licensed to provide legal services in Ontario. xxx In cases involving paralegals, see Rule 5.01(11) of the Paralegal Rules of Conduct. xxxi Mayer, Nancy, “Are Lawyers Affected by Trauma Cases?”, Ontario Trial Lawyers Spring Conference 2009. Assistance programs and psychological help ought to be sought in situations where a lawyer’s (or staff members) mental or emotional health is at risk. Asking for help and receiving help are not signs of weakness. Rather, “we, as lawyers, are not immune to the challenges that face all humans. We are not super humans”. Help can be obtained through the Ontario Lawyers’ Assistance Program or privately funded mental health professionals. To contact the Ontario Lawyers’ Assistance Program, consult http://www.olap.ca/contact‐and‐directions.html
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