SNC-Lavalin affair offers harassment lessons for employers
By AdvocateDaily.com Staff
The federal government’s handling of the SNC-Lavalin affair shows how easily employers can fall afoul of legislation dealing with human rights and harassment, Toronto employment and human rights lawyer Kevin Marshall tells AdvocateDaily.com.
In a recent report, a National Post columnist claimed that Prime Minister Justin Trudeau’s conduct during the scandal, in which government officials are alleged to have inappropriately pressured former Justice Minister Jody Wilson-Raybould to intervene in the criminal prosecution of the Quebec-based engineering giant, violated the Treasury Board’s guidelines on workplace harassment.
“If it can happen to this prime minister, who has prided himself on his feminism and his approach to harassment, then it can very likely happen to anyone,” says Marshall, principal of Kevin Marshall Personal Injury and Employment Law.
“For employers in general, this is a warning to tread very carefully when it comes to harassment because it’s an absolute minefield,” he says. “The vast broadness of the federal and provincial human rights legislation means that day-to-day incidents happening in any workplace could be technically found to have been violations.”
In many cases, Marshall says the unwillingness of employees to involve third parties such as humans rights tribunals is all that stops cases from going any further, but he warns that the situation can change if an individual is fired or feels slighted in other ways at work.
“People with legitimate grievances may bite their tongue if they’re concerned with the effect it may have on their employment, but many of these complaints do emerge later as a way to express pent-up frustrations after the employment relationship ends,” he says.
“The best advice for employers is to try to maintain peace and harmony among employees and between employees and management at all times. They have to go the extra mile because human rights legislation is overreaching and does not reflect the reality on the ground.
“It’s not realistic to expect that a volatile, but otherwise good manager, will never yell in the workplace. But depending on how it’s perceived, it could technically be a violation of a Human Rights Code,” Marshall says.
In the SNC-Lavalin case, the Treasury Board guidelines require more than one event to constitute harassment, according to the Post. However, the policy also makes clear that ignorance will not be a defence, stating that the alleged perpetrator will be found in violation if they “knew or reasonably ought to have known that such behaviour would cause offence or harm.”
As the story notes, both Trudeau and his former senior aide Gerald Butts have claimed to be unaware of Wilson-Raybould’s feelings regarding their repeated requests for her to rethink her position on the prosecution and each expressed shock at her objection to their plans to move her out of the attorney general portfolio.
“Which," writes Post columnist Kelly McParland, "under the guidelines of Trudeau’s own government, is no defence whatsoever. Wilson-Raybould’s appearance before the justice committee made clear that both tests of a harassment violation were met in the government’s actions. The pressure to have her rethink her position occurred more than once, and both Butts and Trudeau knew, or should have known.
"Rather than acknowledge this, the prime minister has attempted to blame Wilson-Raybould. He has cited the fact she didn’t come to him with her complaints — though she says she did make her views clear to him, directly, at a meeting they had last September. She also complained to Butts, and to other aides and officials in the upper ranks of the cabinet and the Prime Minister’s Office.
"If Trudeau remained deaf to it, the law says it’s his fault, not hers. As he acknowledged himself, ‘I should have known.’”
Marshall says Ontario’s Human Rights Code sets a similar test, defining harassment as “a course of vexatious comment or conduct that is known or ought reasonably to be known, to be unwelcome.”
“It’s interesting to me because Trudeau is a person who has spoken often about harassment and recognized it as a problem in the workplace, and yet, by his own admission, he has violated his own guidelines,” Marshall says.