Subscribe to our newsletters
Sexual Harassment in the Workplace: NK v. Botuik
A $170,000 general damages award. Conduct the Tribunal described as spanning virtually the entire spectrum of sexually harassing behaviour in the workplace. A finding that fearful compliance is not genuine consent. The 2020 Human Rights Tribunal of Ontario decision in NK v. Botuik (2020 HRTO 345) is one of the most significant sexual harassment decisions in Ontario's human rights history, and it carries important lessons for employers about supervisory authority, the limits of the consent defence, and what happens when harassment complaints are not handled properly.
Facing a workplace harassment complaint or reviewing your harassment investigation policies?
This decision reinforces that employers bear significant liability for supervisory harassment and inadequate complaint responses. Get legal advice before responding to any complaint or conducting an investigation.
Call: 1-800-771-7882 Speak With an Employment LawyerWhat happened
The applicant was employed at group care homes operated by Alan Stewart Homes Ltd. in Peterborough, Ontario. Her direct supervisor, Mr. Botuik, controlled her scheduling and shift assignments. Shortly after she began employment, he began a pattern of sexual harassment that escalated over time from inappropriate comments to unwanted physical contact and ultimately to sexual assault. He used his supervisory authority to coerce her into compliance, exploiting her fear of losing her employment.
When the applicant tried to end the unwanted relationship, Mr. Botuik retaliated by having her arrested on fabricated assault allegations and cancelling her shifts. When she reported the harassment to the employer, both she and Mr. Botuik were terminated. The Tribunal described the conduct as among the most serious and egregious ever brought before it.
What the Tribunal found
Fearful compliance is not genuine consent
Mr. Botuik argued the relationship was consensual. The Tribunal firmly rejected this. Where an employee submits to a supervisor's advances out of fear of reprisal or job loss, that submission is not true consent. The power imbalance created by supervisory authority fundamentally undermines the possibility of genuine consent in a relationship between a supervisor and a subordinate they control.
Conduct outside the workplace can fall within the Code
The sexual assault occurred at the applicant's home rather than at the workplace. The Tribunal found it nonetheless fell within the scope of the Ontario Human Rights Code as a continuation of the workplace harassment, because the relationship that gave rise to the assault was rooted in the employment relationship and the supervisor's exercise of workplace authority.
Reprisals through supervisory authority significantly increase liability
The retaliatory actions taken through Mr. Botuik's supervisory position cancelling shifts, causing the applicant's arrest, and contributing to her termination were treated as aggravating factors in the damages assessment. The abuse of supervisory authority to retaliate against a harassment complainant substantially increases the damages exposure under the Human Rights Code.
Factors that drove the $170,000 award
Three employer lessons from this decision
A supervisor's conduct is your liability
Employers are responsible under the Ontario Human Rights Code for harassment committed by their supervisors in the course of employment. The fact that the harassment was carried out by an individual rather than through a formal company policy does not insulate the employer from liability. Where a supervisor uses their authority over scheduling, assignments, or employment status to coerce or retaliate, the employer is exposed to the full damages award. Supervisory conduct is the employer's conduct for the purposes of the Code.
A claim of consent in a supervisory relationship requires very careful assessment
This decision establishes a principle that has broad application beyond its facts: apparent consent in a relationship between a supervisor and a subordinate they control must be assessed with close attention to power dynamics. Where a supervisor controls scheduling, assignments, promotions, or continued employment, any compliance by the subordinate must be evaluated against the fear that power creates. Employers investigating harassment complaints where consent is claimed must probe these dynamics carefully and cannot simply accept a supervisor's account that the relationship was mutual.
The response to a complaint can independently increase liability
The retaliation against the applicant after she attempted to end the relationship and after she reported the harassment including the false arrest complaint and termination significantly increased the damages award. Employers who do not respond to harassment complaints with genuine investigation and protection for the complainant risk creating or exacerbating liability that goes beyond the original harassment. Retaliation against a complainant, whether by the harasser or through employer inaction, is a separate and serious violation of the Code.
Does your organization have a harassment investigation policy that addresses supervisory harassment and power imbalances?
The absence of a robust harassment policy and investigation process is itself a liability risk. Our team advises employers across Ontario on employment litigation, workplace harassment investigations, and human rights compliance. Get advice before a complaint arises.
Get Legal Advice Or call us: 1-800-771-7882Practical takeaways for Ontario employers
Questions about workplace harassment liability or investigation procedures in Ontario?
Our team advises employers across Ontario on employment litigation, human rights complaints, and workplace harassment investigations. Contact us for a confidential consultation.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.