HomeMy WebLinkAbout1992-0974.Santos.95-02-03
.. 1>iSi'Y'lci6sal- (jne..'iOr da.t.V1A c::i.l.J~ W/o j..,!rl-tllLU.(
- - di<;.nu.~ I~ ~ 'q-z. -10... har-a$9I~
.;; ""'i. ~..,' ONTARIt."
1("":.):: EMPLOYES DE LA COURONNE c..o-~~^ ~ ,ct,<', -\r) It:; (
, CROWN EMPLOYEES DE L 'ONTARIO
1111 GRIEVANCE CpMMISSION DE -,dl~ - t..Un,,)~+ ~ ~
SETTLEMENT REGLEMENT d..\<f.~'I~ - '6ne.vor re,"",~
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONEITEtLEtPHONE. (476) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE ITELEtCOPIE (476) 326-7396
974/92
IN THI MATTER OP AN ARBITRATION 92C915
Under
TBE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TBE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Santos)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Health)
Employer
BEPORE: H. waisglass Vice-Chairperson
E. Seymour Member
M. O'Toole Member
POR TBE N. Coleman
UHION Counsel
Gowling Strathy & Henderson
Barristers & Solicitors
POR THE M. Quick
EMPLOYER Counsel
Legal Services Branch
Ministry of Health
BEARING June 9, 1993
October 12, 1993
November 5, 9, 1993
December 1, 2, 3, 9, 10, 1993
May 2, 4, 10, 11, 16, 17, 18, 19, 30, 31, 1994
July 21, 26, 1994
September 16, 26, 1994
October 7, 24, 1994
November 23, 24, 1994
-
"~
~ I
1'>
2
r DECISION
Backaround to the Dlspute
Graciano Santos, employed wlth the Mlnistry Slnce May, 1981, as a secur1ty
offlcer at the Queen Street Mental Health Centre [QSMHCJ, by a grlevance
dated Aprll 13, 1992, clalms that he was "dlsmlssed without just cause" and
asks "to be reinstated to my posltion retroactive to the date of dism1ssal
wlth full pay, benefits, seniority" [Exhibl t lJ r
Employer's counsel submltS that Mr Santos [the grievorJ was suspended and
re1nstated ln October-November, 1991, pending the investigation of a sexual
harassment complaint flIed by Ms Kathy Crulckshank, a Registered Nurse, [the
complainant] also employed at the QSMHC, who at all mater1al tlmes worked the
n1ght sh1fts [11 pm to 7 30 amJ 1n the Admltting Department As the
consequence of an investigat10n Wh1Ch had followed hlS suspenSlon, Santos was
d1smlssed 1n March, 1992 Counsel submlts that the evidence proves the
gr1evor had sexually harassed the complalnant over a per10d between some t1me
in 1989 and July, 1991, by engaglng In a course of vexatious comments and
conduct that was unwelcome or that he ought to have known was unwelcome She
subm1ts that the grlevorharassed the complalnant not only wlth numerous
1nappropr1ate and humlllatlng sexual comments, but also when he "grabbed and (,
fondled" her on two occasions
Employer's counsel submltS the evidence proves that the grievor's offense of
sexual harassment was sufflclently serious to justify hlS dismissal,
notwithstandlng a record of long and satisfactory service which is without
dlscipllne and wlthout anything adverse in his appraisals And further,
counsel argues that the seriousness of the offense calls for "zero tolerance",
and compels the grlevor's dlsmlssal if we find on the eVldence convlnclng
proof of the complalnant's allegations
Ms Quick alerted us from the outset to the most crihcal lssue ln thlS case,
WhlCh 1S the cred1b1lity of the w1tnesses, particularly regardlng dlfferences
,
I '-
1-
~ :1. <i
3
1n the evidence of the compla1nant and the grievor Ant1c1pat1ng quest10ns why
the compla1nant put up w1th the gr1evor's behav10ur over a prolonged per10d
and why it took so long before she decided to compla1n, counsel relles largely
on the eV1dence of Dr Elaine Bor1ns, psych1atrist, an expert w1tness on
v1ct1ms of sexual assaults, in support of the Employer's argument that the
delay 1n bringing the matter to management's attention 1S cons1stent with the
behav10ur frequently experienced among those who have suffered the trauma of a
sexual assault She relies also on certa1n arbitration awards cited below
From the beg1nn1ng, Employer's counsel declared her intent10n to call on the
eV1dence of all of her w1tnesses except Dr Bor1ns before she called for the
eV1dence Ms Cruickshank, the complainant, as a witnesses In splte of the
expreSS10ns by Un10n counsel and the panel members 1n the1r preference for
hear1ng much earl1er in the proceed1ngs the part1culars of the compla1nt from
the complalnant herself, the Employer's counsel perslsted ln her orlglnal
1ntent1ons to produce the complainant only after we heard evidence from
Mi.ndy G1nsler and Ricki Grushcow on the Employer's sexual harassment policy,
Gerry Sloot on the security organization at the QSMHC Centre, ~Glsela Albrecht,
the manager who received the complaint, Wayne Yetman the Invest1gator of
Cruickshank's compla1nt, followed by several employees
It snould be noted that at no p01nt dur1ng the proceed1ngs d1d Ms QU1ck
1nd1cate any intention to call as one of her several w1tnesses the manager who
had made the dec1sion to dismiss Santos, nor did she at any time during the
proceed1ngs offer to produce the letter of dism1ssal as documentary evidence
It was not until after she had closed her case that she asked for the Un10n
counsel's consent to SUbm1t as evidence management's letter of dism1ssal That
happened on May 18, 1994, after the Employer's case was closed The Union
refused the request and promptly presented a motion of non-suit, but would not
be put to 1ts elect10n We then accepted Mr Coleman's motion to adjourn
until the next morning, permitting both counsel to prepare their respective
arguments on the non-suit motion When we re-convened the next day Ms Quick
surprlsed us wlth a motion to re-ooen the case for the sole purpose of
permtt1ng the Employer to enter the dismissal letter 1nto eV1dence
I
" :!:" ~
.,
4
The two motions were heard and decided together After hearIng and consIderIng
the submIssIons of counsel, we promptly made an oral rulIng to dismiss both
motIons, but without reasons The reasons wIll be gIven below
Union counsel submits that the allegations of sexual harassment are not
believable He claIms the evidence presents a dIfferent view of the grIevor
and the alleged incidents than what the Employer seeks to create It shows
Santos, a 12-year employee with POSItIve performance assessments and WIthout
any discipline, is commended by many of the Employer's own witnesses as a very f~'
good employee He has a good reputation as outgoing, fun-lOVIng, a humorous,
generous and popular person, who is generally well-liked among employees at
the Centre His frIendly, bantering, JokIng relationship WIth the complainant
IS not at all compatible or conSIstent WIth the allegatIons There IS only one
complaInant The InvestIgatIon dId not produce any others
Counsel submits that the grievor did not grab and fondle the complainant,
although he acknowledges that on one occasion he had touched her in a harmless
and playful manner, while both were engaged in JokIng, teaSIng and bantering
exchanges In which the complaInant participated He SUbmIts the complainant
had done nothing to let him know that hIS conduct was unwanted or in any way
offenSIve The eVIdence of the Employer's witnesses, including the complaInant
herself, supports the grievor's claim that they were frIends, that the grievor l'
\.
and complainant had a frIendly relatIonship WhICh included jokIng exchanges
between them He SUbmItS further there was a history of sexual bantering
between them WhICh was commonplace among employees at the Mental Health
Centre The grIevor's evidence was that he was never previously told by the
complainant or instructed by management that any of his comments or conduct
were unacceptable, or that they may be regarded as sexual harassment The
grievor told us that he would not have engaged in any of the bantering, joking
or "foolIng around" If the complainant would have told him at any time that
his behaviour dIsturbed or offended her in any way He testified he would be
the fIrst to apologIze if told he had done anything wrong Counsel submits
that at all relevant times the Employer had tolerated such )obng' or bantering
of a sexual nature, WhICh was typical among employees in the workplace, and
I
-.
-
~ ~ ~
.
5
that the Employer had done nothlng, prlor to the complalnt to lnform Santos
that the conduct WhlCh had been qUlte commonplace ln the workplace was no
longer acceptable
Mr Coleman clalms the Employer's eVldence on ltS Sexual Harassment Pollcles
serves only as a "red herring" The pollcles are not on trlal The Unlon
acknowledges such pollcles eXlsted ln a general way, but lt denles the grtevor
was made aware of them prior to the alleged incldents WhlCh comprtse the
complaint Nevertheless, counsel does not deny that offenstve and vexattOUS
conduct which, lf proven to constltute sexual harassment, would be Just cause
for disclplinary actlon, no matter whether the more recent or the earlter
sexual harassment pollcles were appllcable In any event, he SUbmltS, the
grlevor's conduct does not constltute sexual harassment
Unton counsel approprtately pOlnts out that the onus on the Employer, tn this
dispute, is not to prove the existence of sexual harassment pollcles WhlCh are
admltted, but rather to prove the allegations of the complainant, on the
balance of probabilittes, with clear, cogent, and convtncing evtdence Thus,
he asserts, the key clear issues before us is to determtne on the eVldence,
ftrst, whether the alleged incldents had actually happened, and secondly
whether or not the grlevor knew, or should have known, that his conduct was
ob]ectlonable to the point of amountlng to sexual harassment
~
The Employer's Sexual Harassment PolIcIes
Employer Counsel submitted a book, Documents Pertainlna to Sexual Harassment
Pollcies [Exhibit 2J, containtng papers at 17 tabs Two wttnesses for the
Employer identified the documents in Exhiblt 2, and explatned the pOltCles
Mtndv Ginsler, who in the perlod September, 1989 to June, 1991 was the ProJect
Coordinator in the Human Resources Secretariat responsible for the development
and lmplementation of the ov~rall sexual harassment policles, including the
legal, communications and tralning aspects, and Rickl Grushcow. manager,
Employment Equity Program, Mtnistry of Health
~I
'-~\ l'
6 ' . ?'
.
TAB 1 copy of a Management Board of Cablnet document dated September 13,
1989 entltled "OPS POLICY ON SEXUAL HARASSMENT--COMMUNICATIONS STRATEGY"
,
prepared by Jane Courtemanche, Marketlng & Comrnunlcatlons Servlces Branch
TAB 2 copy of a memorandum dated December 1, 1989, from Elalne M Todress,
Deputy Mlnlster, Human Resources Secretarlat, Management Board of Cabinet,
addressed to All Deputy Mlnlsters, drawlng thelr attentlon to "the new sexual
harassment poltcy", "developed 1n conJunctlon wlth mlnlstry representatlves",
"whlch strengthens the sexual harassment provislons of the eXlstlng personal
harassment policy", and wh1ch was "introduced, effectlve December 1, 1989"
The memorandum refers to certaln enclosures "the policy directive" {TAB 3},
"a gUlde to the pollcy" {TAB 4}, and "a sample letter which you may w1sh to
adapt to communicate your support for thlS pollcy to your employees"
TAB 3 0 P 5 Sexual Harassment POllCY Dlrect1ve, Dated November 27, 1989
TAB 4 0 P S GUlde to Sexual Harassment Policy Dated November 20 1989
lAB ~ Copy fAt 1 ' ' (->-
o r lC e 27 10 [Sexual HarassmentJ of Collecttve Agreement,
TAB 6 Copy of Artlcle 27 10 [5 lJ~nuary 1, 1989 to December 31, 1991
exua arassmentJ of Collective Agreement
TAB 7 Copy of Sect10ns 6 9(1)(f) ~~~~ary 1, 1992 to December 31, 1993
TAB 8 S 1 H ' , of Human Rlahts Code, SO 1981 C 53
exua arassment Pollcy--Role of Advlsor '
TAB 9 Extracts from TOPICAL-December 8 19 .
pollcy revlsed" and copy f J ,89 Arttcle, "Sexual harassment
Mlnlster, Human'Resources ~ecro~nt.L~tter from Elalne Todress, Deputy
TAB 10 Letter dated July 9 1~9~rl~ and Jlm Clancy, President, OPSEU
to ADM's, Branch Olrectors'H ' rom Dr Barkin, Deputy Mlnlster of Health
Dlrectors and Laboratory oire~~~~;al Adminlstrators, Reglonal Oistrlct '
TAB 11 Undated brochures on Sexual H
Strateglc Planning and Project B arassment, Human Resources Secretarlat
[lJ Respondlng to Allegations ~f ~anch '
[llJ Th~derstand your rIghts, resp~~~~~.Har~ssment, a gUIde to help you
[iliJThe g~~ ~exuai Harassment Policy Ib~~~e~ and the complaInt process (.,.-
P bI exua Harassment Policy Q e.ures for managers \:
u IC Servants about h uestIons and answ
conmitment to . t e polrcy--part of the ers for OntarIo
[IV] Putting an End c;ea~Ing harassment-free work IOntarIo government's
and procedures 0 exual Harassment A compl~i~~e: J for everyone
TAB 12 A memo d t d n s gUIde to .optIons
a e August 20 1990
Equity Progra M" ' , from Rtcki Grushc
Administrator~' lmst~y of Health, addressed ow,. manager, Employment
TAB 13 Workpla 00' e~c~ostng the TAB 11 brochuresto Reglonal Personnel
ce lscrlmlnation & ' among others
TAB 14 F~ur undated brochures on D~~:~:~7en: Di rect lVe & GUlde lines, March/92
eVl ence that th na ton and Har
QSMHC before thee~a~:r~fP~~lish~d and distrlbuted ~;s;~nt There 1S no
e grlevance e employees at
I
'-.,
-
-:: 't' fi'
7
TAB 15 Letter dated July 24, 1992, from Bob Rae, Premler, & Peter Barnes,
Secretary of Cab1net, to all OPS Employees, 1nform1ng them of the new
POllCY on "Workplace D1scr1m1nat1on and Harassment Prevent1on"
1ntroduced 1n Apr1l, 1992, "because we recognized that there were no
adequate mechanlsms In place for deal1ng w1th harassment and
d1scr1m1natlon 1n the workplace"
TAB 16 OPSEU, SEFPO Newsletter dated July 16, 1992
TAB 17 OPSEU, SEFPO Newsletter dated July 29, 1992
*************
Unlon Counsel d1d not oppose the admisslon of the documents at Tabs 1 to 12
We agree w1th h1S submlssion that the documents 1n Exh1b1t 2 have very Ilttle
if any relevance to the 1ssues 1n d1spute The Union acknowledges and accepts
the fact that sexual harassment polic1es existed, partlcularly those expressed
1n the collectlve agreement [Tabs 5 & 6J A few of the documents were Intended
for distr1bution among employees to publ1cize the Sexual Harassment POIICY
which was introduced on December 1, 1989 There 1S no eV1dence the gr1evor had
actually rece1ved any of the publ1City mater1als 1ntended for d1strlbut1on at
the workplace Those at Tabs 13 to 17, 1nclusive, were prepared to publlcize
the new Workplace D1scr1m1nat1on and Harassment Prevent10n Polic1es Wh1Ch dld
not become effect1ve until April, 1992, Wh1Ch 1S after the gr1evor's
d1smlssal The Employer's witnesses who work at the QSMHC, who were shown the
items at Tabs 9, 10, or 11, in Exh1b1t 2, could not clearly recall 1f or when
they had prevlously seen or read the documents We accept the obJect1ons of
( Umon Counsel that the items at Tabs 13, 14, 15, 16, and 17 are not relevant
because they are dated after the date when Santos was suspended pend1ng the
1nvest1gation of the sexual harassment complaint against him
By her handwritten letter dated October 9. 1991, Cru1ckshank brought her
complaint to the attention of her supervisor, Vita Clarke [Exhib1t 8J
According to her test1mony, the alleged incidents had occurred over a
per10d commencing some time in 1989, and culm1nat1ng with the incident on the
night of July 19, 1991 Santos's 1991 Attendance Record [Exh1bit 26J shows h1S
absence on susDension for the Der10d October 21 to November 15. inclusive
Santos testif1ed he gr1eved the suspenS10n on November 11, 1991 [ExhIbit 31J,
which resulted in his reinstatement w1th pay He testified also that after his
j
------------- - ~
i
I
I
j :t, Y'
8
I
I
I
relnstatement he submltted another grlevance, dated November 22, 1991,
clalmIng "that I am belng treate~ unfalrly and improperly by management In
that they have failed to inform me of the complainant's name and the speclfIcs
,
of the complaint" and that "I have not been given a copy of these allegatIons
I
I
or been IntervIewed although almost 5 weeks have elapsed "The grIevance
demanded "an Impartial InvestigatIon" [ExhIbit 32J
I
!
The grievance, dated April 13/92, was flIed under the 1992-3 CollectIve
Agreement We fInd that the Sexu~l Harassment provIsions of that Collective 1~-
Agreement, Artlcle 27 10 [ExhIbtt 6J, are relevant and applicable to the '
determInatIon of this dispute, p~rticularly the following sections
I
27 10 1 All employees covered by this Agreement have a right to freedom from
harassment in the workplace because of sex by his or her Employer or
agent of the Employer 9r by another employee Harassment means
enaaai na in a course of vexati ous comment or conduct that is known
or ouaht reasonablv to Ibe known to be unwelcome.{[EMPHASIS IS OURS]
(Our Note Thi s defini tion is the I same as in the Ontario Human Rights Code)
i
27 10 2 Every employee covered 6y this Collective Agreement has a right to be
free from, :
(a) a sexual solicitation or advance made by a person in a positi.on
to confer, grant or ~eny a benefit or advancement to the employee
where the person making the sol idtatton or advance knows or ought
reasonably to know that it is unwelcome, or
i
(b) a reprisal or threat of reprisal for the rejection of a sexual
solicitation or advqnce where the reprisal is made or threatened
by a person in a position to confer, grant or deny a benefit (r
advancement to the ~mployee '
27 10 3 1 The time limits set out in Section 27 2 1 do not apply to
complaints under thi~ Article, provided that the complaint is made
within a reasonable time of the conduct comolained of. havina
reaard to all the cVrcumstances [EMPHASIS IS OURS]
I
,
27 10 3 2 Where. at any time ei ther before the mak'i na of a comP lai nt or the
filina of a artevancei under Article 27. the Emoloyer establishes
an investtaatlon of the complaint. or the employee aarees to the
establi shment of such I an investiaation. pursuant to anv staff
relations pol icv or other procedure of the Employer. the time
limits for the processina of the complaint or arievance under
Article 27 shall be suspended until the emplovee is c;li ven noti ce
in writtna of the res.'ults of the investiaation. [EMPHASIS IS OURS]
!
The Collective Agreement expresses the jointly-determined laws of the
I
workplace It prohIbits and defihes sexual harassment, notwithstanding the
I
I j
i ~-
I
!
!
I
~ T ~
9
un11aterally-determ1ned polic1es of the Employer In the event of a confl1ct
between the Collect1ve Agreement and the Employer's pol1c1es, the prOV1S10ns
of the Collect1ve Agreement are .preferred It 1S slgnificant in this dIspute
that the Collective Agreement's provis10ns on sexual harassment suspend the
time lim1ts of the grievance procedure {Art1cle 27} "prov1ded that the
complatnt 1S made within a reasonable t1me of the conduct complatned of,
having regard to all the c1rcumstances" Thus, the collect1ve aareement
exoresses the mutual 1nterests of the oart1es 1n avo1dina unreasonable delays
1n confrontina and resolvina alleaat10ns of harassment The Employer does not
have the right to delay unduly or unreasonably the commencement and/or the
completion of an 1nvestigation w1thout regard for the consequences of such
delays upon the legitimate interests of the complainant and the gr1evor The
suspension of the t1me 11mits for the processing of compla1nts or gr1evances
tn no way bestows upon the Employer the r1ght to unduly and unreasonably delay
an Invest1gat1on and thereby delay tak1ng a d1sciplinary act10n, and to do so
I w1th impunity The emolovee has a substantive r1aht to the determ1nation of a
sexual harassment comolaint without undue or unreasonable delay.
r
The Un10n submtts that Santos was dtsmissed wtthout Just cause and seeks hts
reInstatement with full compensat10n and wIthout loss of benefits and
senIorIty This subm1ssion 1S essentially founded on the follow1ng two
grounds FIrst, the Employer, who bears the onus of proving that Santos has
engaged tn sexual harassment in relation to CruIckshank, has fa1led to to so,
on the appropr1ate standard of proof, and on the balance of probab1l1ty, but
to a higher degree of probability, given the seriousness of the allegations
and the gravity of the consequences for the gr1evor The UnIon relIes on
Montaomerv (GSB 1048/85, P 8-10) and Daaaitt (GSB 513/85, p 11-13)
Secondly, theUn10n submits that the d1smissal should be set aS1de on the
grounds of delay alone It claIms that "the allegations of Ms Cruickshan~
aga1nst Mr Santos were brought to the attention of the Employer on or about
October 9, 1991" and that "the Employer did not dismiss Santos unt1l March 22,
1992 The Employer made no effort to explain or excuse th1S undue and
unreasonable delay The UnIon submits that the grounds for setting aside the
d1sm1ssal are sim1lar to those in the following cases on which 1t rel1es
J
r' i.
10
Borouah of North York (1979), 20 LAC (2d) 289, Brunsw1ck Bottlina Ltd.
(1984), 16 LAC (3d) 249, Vancouver Sh10vards Ltd. (1988), 34L A C (3d) 412
{These cases are examined and considered in the concluding sect10n of th1S
award }
On Standard of Proof
Because th1S 1S a d1sm1ssal case we apply the same standard of proof as the
Board has appl1ed tn other dismissal cases The standard of proof in a case of (:
thts kind tS set out 1n Re Bernsteln and the Colleae of Phvstcians and
Suraeons of Ontarto [15 0 R (2d) 447J where the Ontario D1vis1onal Court
stated that the proof must be "clear and conv1nclng based on cogent eV1dence
Wh1Ch 1S accepted by the tribunal" and that the "ser1ousness of the charge tS
to be cons1dered by the tribunal tn ltS approach to the care it must take 1n
dec1d1ng a case which might in fact amount to a sentence of profess1onal
death" The grlevor has been charged with a serious offense and a find1ng that
he committed the offense exposes him to the risk of the loss of h1S '\
Itvellhood
On The Human Costs of the Delays
We have no evidence of any invest1gattOns undertaken by the Employer promptly ('
after recetvtng the 1n1tial compla1nt [Exh1b1t 8J, and durtng Santos's
suspenston Yetman testif1ed h1S investigation lasted about two and a half
months, and did not start unt1l late November or early December It concl uded !
i
no later than February 15, 1992 We find the delay of more than five months,
from October 9, 1991 when the Employer recelved Exhibit 8, and more than a
month after the completion of the invest1gation, unt1l Santos's d1smissal on
.
March 23, 1992, 1S inexcusable, unreasonable, and unfair for the complainant
as well as the grievor
The prolonged and palnful disrupti.ons to the1r li.ves which the delays have
caused both the complalnant and the grievor compels our sympathy and empathy
(
--.:->
-:: '1' I)
11
The delays have been unfa1r to the gr1evor because they have 1mpeded and
delayed h1S ab1l1ty to defend h1mself Cru1ckshank dId not compla1n to
management about Santos's conduct unt1l October 9. 1991. [Exh1b1t 8J about
three months after Julv 19. 1991. the last of the alleaed lncldents Santos
was suspended wIthout pay pendIng the InvestIgation of the complaInt, for the
period from October 21 to November 15, 1991 [Exh1b1t 26J, but there 1S no
eVIdence that an Invest1gation was made durIng that per10d HIS suspenSIon
gr1evance dated November 12, 1991 [ExhIbit 31J was successful He returned to
work on November 18 [ExhIbit 26J StIll no eVIdence of an lnvestlgatlon On
November 22 Santos grleved, demandlng "an lmpartial investlgatlon" [Ex 32J
Yetman's investigatlon commenced about a week later and was completed no later
than mld-February Santos was not dIsmIssed untIl March 23. 1992 H1S
d1sm1ssal gr1evance came to a fIrst hearlng on June 9. 1993 We heard h fteen
w1tnesses before the Emolover produced the comolalnant on May 2. 1994. when we
commenced hearIna the particulars of her alleaations.
Having heard Cruickshank's testimony we have some inSIght on why she was not
presented as a WItness much earlier We found her to be a reluctant
complainant and an uncomfortable w1tness who was displeased and upset by the
prolonged process, particularly the Employer's delays and apparent dIsinterest
in resolVIng her In1tIal request She told us she was very upset by the
Employer's act10ns In f1rst suspend1ng and then dIsmlsslng Santos She told
the Employer she did not want the matter pursued to arbltration, and that she
preferred to have the matter resolved WIthout his dismIssal Her eVIdence
indicates she felt discouraged by management's apparent dISInterest in
resolVIng her inItial complaInt and request of October ~ 1991 [ExhIbIt 8J,
and that she was unwllling to flle a formal complaint until more than a month
later, November 25. 1991 [Exhibit 16J, when she finally succumbed to the
pressures she felt from her unresolved problems
CrUIckshank asserted her deSIre to be done with her duties as a witness, often
rejecting counsel's offers for a break She made very clear she was greatly
disturbed by Santos's dismissal She told us in no uncertain terms that if she
had known the consequences she would not have submitted the complaint The
J
'll ,),
12
delays prolonged the palnfulness of the process and dlsrupted the llves for
both the complainant and the grievor
On Judging Credibility
The submlssions of counsel for both Unlon and Employer agree that the findings
of credibi lity of the witnesses, particularly the complalnant and the gnevor,
are critlcal to our dlsposition of the case The Employer asks us to Judge
the quallty of thelr eVldence "wlth respect to the candor and care wlth which r
the evidence was glven, wlth the overall conslstency of the account wlth
factual events and the probability that events occurred as they were related"
The Unlon asks us to be "cautious about Judging credlbility of a wltness
solely on the basls of personal demeanour or appearance of slncerity ln a
witness's style of glvlng eVldence", that we "must go beyond mere style of
presentation and take lnto account the substance of the eVldence presented"
The Union .relies on Farvna v. Chornv. [1952] 2 0 L R 354 (S C C A ) In
assessing the credlbllity of the witnesses and maklng findings of fact, we are
mindful of the guidelines lald down by Mr Justice O'Hallaran of the Sri tish
Columbia Court of Appeal in Farvna v. Chornv. where he states in part at pp
356-8
"If a trial Judge's finding of credibility is to depend solely on which person ('
he thinks made the better appearance of sincerity in the witness box, we are
left with a purely arbitrary finding and justice would then depend upon the
best actor in the witness box On reflection it becomes almost axiomatic that
the appearance of telling the truth is but one of the elements that enter into
the credibi 1 i ty of the evidence of a witness Opportunities for knowledge,
powers of observation, judgment and memory, abi 1 i ty to describe clearly what
has been seen and heard, as well as other factors, combi ne to produ ce what is
called credibility A witness by his manner may create a very
unfavourable impression of his truthfulness upon a trial Judge, and yet the
surrounding circumstances in the case may point decisively to the conclusion
that he is telling the truth I am not referring to the comparatively
infrequent cases in which a witness is caught in a clumsy lie
"The c redi bi 1 i ty of the wi tnesses, particularly in cases of confl ict of
evidence, cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried a conviction of the truth The
test must reasonably subject his story to an examination of consistency with
the probabilities that surround the currently existing conditions In short.
the real test of the truth of the story of a witness in such a case must be
its harmony wi th the preponderance of the probabi 1 i ti es whi ch a practi cal and
{
'---
l' ()
13
informed person would readily recognize as reasonable in that place and in
those conditions Only thus can a Court satisfactorily appraise the testimony
of quick-minded, experienced and confident wi tnesses, and of those shrewd
persons adept in the hal f-l ie and of long and successful experience in
combining ski.llful exaggerahon with partial suppression of the truth Agai n a
wttness may teshfy what he sincerely believes to be true, but he may be
honestly mistaken For a trial Judge to say "I believe him because I judge
htm to be tell ing the truth", is to come to a conclusi.on on constderati.on of
only hal f the problem In truth it may easi.ly be self-direchon of a dangerous
kind
"The trial Judge ought to go further and say that evidence of the witness he
believes is in accordance with the preponderance of probabilities in the case
and, if his view is to command confidence, also state his reasons for that
conclusion The law does not clothe the trial Judge with a divine insight into
the hearts and minds of the witnesses And a Court of Appeal must be satisfied
that a trial Judge's finding of credibility is based not on one element only
to the exclusi.on of others, but is based on all the elements by whi. ch i. t can
be tested in the particular case "
On Gender BIas and Other Problems for Fact FI ndl ng
From the start of the proceedings we were aware that the cred1bility of the
WItnesses is a maJor issue Throughout the proceedIng and fInally by the -,
evidence of psychiatry professor Dr Elaine Borins, the Employer's expert
witness, we were made aware of the potential perceptual d1fferences between
males and females, on what they see or hear This is an important problem for
fact-f1nding 1n sexual harassment cases At the same t1me, however, we are
aware that bIas and prejudIce are not by any means new problems for Judges and
arb1trators as fInders of facts The judic1al process has evolved hIgh
standards for impartIalIty and dIspassionateness in fact-finding through the
contr1but1ons of many generat10ns of great legal mInds
"Law and the Modern Mind", the work of the great American jurist, the late
Judge Jerome Frank [dIstinguished for hIS contributions to the literature of
Jurisprudence and legal philosophyJ is a book presenting hIS phIlosophy of
legal realism and constructive skept1cism, which has profoundly 1nfluenced
legal thinking and fact-finding improvements 1n the judiCIal process In the
preface to the SIxth pr1nt1ng rAnchor Books edition, 1963J he notes that "much
of the mood which permeates th1S book I later articulated, after I became a
judge, in a judicial opinion relative to trial judges, delivered in 1943,
'l: J
14
In re J P Llnghan, 138 F (2d) 650, 652-654
"Democracy must, indeed, fail unless our courts try cases fai rly , and there
can be no fai r trial before a judge lacking in impartiality and disinterested-
ness If, however, 'bias' and 'partiality' be defined to mean the total absence
of preconceptions in the mind of the judge, then no one has ever had a fai r
trial and no one ever will The human mi nd, even in infancy, is no blank piece
of paper We are born with predispositions, and the process of education,
fo rm a 1 and informal, creates attitudes in all men which affect them in judging
si tuations , attitudes whi ch precede reasoning in particular instances and
which, therefore, by defi ni ti on are pre-judices Without acquired 'slants',
pre-conceptions, 1 He could not go on Every habit consti tutes a pre-judgment,
were those prejudgments which we call habits absent in any person, were he
obi iged to treat every event as an unprecedented crisis presenting a wholly .l".....
new problem he would go mad Interests, poi nts of view, preferences are the
essence of 1 i vi ng Only death yields complete dispassionateness, for such
di spassionateness' signi fies utter indifference 'To live is to have a
vocation, and to have a vocation is to have an ethics or scheme of values, and
to have a scheme of values is to have a point of view, and to have a point of
vi ew i sto have a prej udi ce or bias , An 'open mind', in the sense of a
mi nd contai ni ng no preconceptions whatever, would be a mind incapable of
learning anything, would be that of of an utterly emotionless human being,
corresponding to the psychiatri st' s descri ptions of the feeble-minded More
di rectly to the poi nt, every human soci. ety has a multitude of establt shed
atti tudes, unquestioned postulates Cosmically, they may seem parochial
prejudices, but many of them represent the community's most cherished values
and ideals Such social pre-conceptions, the 'value judgments' which members
of any gi ven soci ety take for granted and use as the unspoken axi oms of
thinking, find their way into that society's legal system, become what has
been termed 'the valuation system of the law' The judge in our society has a
duty to act in accordance to those basic predilections inheri ng in our legal
system (although he has the right, at times, to urge that some of them be
modi fi ed or abandoned) The standard of dispassionateness obviously does not
requi re the judge to rid himsel f of the unconscious influence of such social
attitudes
(
"In addition to those acquired social value judgments, eve ry judge, howeve r,
unavoidably has many idiosyncratic 'leanings of the mind', uniquely personal
prejudices, which may interfere with his fairness at a trial He may be
stimulated by unconscious sympathies for, or antipathies to, some of the
witnesses, lawyers or parties in a case before him As Josiah Royce observed,
'Oddities of feature or complexion, slight physical variations f rom the
customary, a strange dress, a scar a too-steady look, a limp, a loud or deep
voice, any of these peculiarities may be to one, an object of fascinated
curiosity, to another , an intense irritation, an object of vi.olent
anti pathy , Franklv to recoanize the existence of such orejudices is the
00 rt of wi sdom . The conscientious iudae will. as far as oossible. make
himself aware of his biases of this character. and. bv that verv sel f-
knowledae. null ifv thei r effect. Much harm i.s done by the myth that, merely by
putting on a black robe and taking the oath of office as a judge, a man ceases
to be human and stri.ps himself of all predi lections, becomes a passionless
thinking machine The concealment of the human el ement in the judicial process
allows that element to operate in an exaggerated manner, the sun1i.aht of
awareness has an antiseotic effect on oreiudices. Freely avowing that he is
a human being, the judge can and should, through self scrutiny, prevent the
operation of this class of biases This self-knowledge is needed in a judge
......
".i.
15
because he is pecul iarly exposed to emoti.onal influences, the 'court room 1S a
place of surging emotions ,the parties are keyed up to the contest, often in
open defi.ance, and the topics at issue are often calculated to stir up the
sympathy, prej udi ce , or ridicule of the tribunal , The judge's decision turns,
often, on what he believes to be the facts of the case As a fact-finder, he
is himself a witness -a wi tness of the wi tnesses, he should, therefore, 1 ea rn
to avoid the errors which, because of prejudice, often affect those witnesses
"But, just because his fact-fi.nding is based on his estimates of the
witnesses, of thei r rel iobi 1 i ty as reporters of what they saw and heard, it is
hi s duty, while listening to and watching them, to form atti tudes towards
them He must do hi s best to ascertai n thei r moti ves, thei r biases, their
dominating passions an.d interests, for only so can he judge of the accuracy of
thei r narrations He must also shrewdly observe the stratagems of the opposi ng
lawyers, perceive their efforts to sway him by appeals to his predi lections
He must canni ly penetrate through the surface of thei r remarks to thei r real
purposes and motives He has an offi dal obligation to become prejudiced in
that sense Impartialitv is not aul h bil i tv Disinterestedness does not mean
child-like innocence If the judge did not form judgments of the actors in
those court-house dramas called trials, he could never render ded sions His
findings of fact may be erroneous, for, being human, he is not infallible,
indeed, a judge who purports to be super-human is likely to be dominated by
improper motives [EmphaSIs ours)
To paraphrase Judge Frank, a general rule agalnst sexual harassment is
eminently just and fairly certain, "but a court decision that a partlcular man
committed [sexual harassment] is surely unjust if in truth he di.d not so act,
yet a trlal court mlstakenly belleves he dld, because of lts bellef ln the
rellabi.lity of oral testimony which does not match the actual facts"
As ln most cases llke this, the partles dlspute the facts The lntruslon of
lnaccurate oral testlmony, in our case, comes not from lYlng or dlshonest
witnesses, but rather from the two prlnclpal wltnesses who have conflictlng
and inconslstent perceptions of the alleged incidents, neither of which may
match the actual facts Further, they can not recall critical circumstances
and aspects of those incldents, and reliable corroborative eVldence is not
available Their abllity to recall the events of more than two or three years
ago are not improved wlth the passage of tlme Upon cross examlnatlon they
readlly acknowledge the shortcomings of thelr memorles The quality of the
eVldence has been prejudlced by the passage of time
Jerome Frank's admonlshments, his constructive approach to fact flndlng in the
legal process profoundly influence the conscious efforts of this arbltration
panel to be more aware of and overcome our personal and improper biases In
~
16
the process of comlng to a clear common Vlew of the eVldence, In evaluatlng
the confllcts in the testlmony, we made painstaklng and deliberate efforts to
correct each other's errors in perceptions of facts Our efforts, however, are
to elimlnate errors In perception Even if we would be capable of doing so, we
would not attempt to replace our male blases with female biases Female biases
are no more acceptable than male biases in a ~ustice system
We have deliberately opted for an androgynous human standard of integrlty in
fact-finding the long-established and tested reasonable person rule for r
Judging the conduct in questlon The reasonable person rule embraces both the
reasonable man and the reasonable woman, and is based on their ablllty to
agree ln thelr assessments of behaviours WhlCh constltute harassment
**************************************
THE EMPLOYER'S WITNESSES. IN THE ORDER IN WHICH THEY WERE HEARD
Except for Ms Glnsler's evidence on the sexual harassment policies WhlCh was C
described above, the evidence glven by the Employer's witnesses are summarized
below In the order in whIch the witnesses were presented
The Evidence of Gerry Sloot
Gerry Sloot testifIed October 12, 1993 Upon the retirement of Robert Frost,
Manager of the Security Services at QSMHC, Sloot was appointed Acting Security
Manager in October, 1992, more than six months after Santos's dismissal
Because he had not previously worked in the Security Services at QSMHC, his
evidence had limited usefulness or relevance He testified on the
administration of the securIty department, the number of security officers,
l~
- -- ~
.
17
the\r hours of work, the application of the master sh\ft schedule under the
compressed work week agreement for secur\ty officers [Exhib\t 3J, the dut\es
and respOnS\bll\t\es for Santos's posit\on, Secur\ty Off\cer 3, [Exh\b\t 4J
H\s evidence on the lnformatlon and tralning recelved by the security staff on
the subJect of sexual harassment is not relevant because it concerned post-
grlevance events He could not give relevant evidence on what happened in the
department prior to his appointment as actlng manager However, he provided
relevant eVldence on the QSMHC premlses, the slte and floor plans, explalnlng
Exhlbits 5(a) and (b), and (6) He was helpful when he escorted us on November
9, 1993, ln "taklng a vlew" of the locations where the alleged offenses were
to have taken place
The Evidence of GIsela Albrecht
Glsela Albrecht test\fled on October 12 and November 5, 1993 She was
assistant d\rector of nursing at QSMHC from 1976 until February, 1993, when
she became acting assistant admtnlstrator, nurs\ng She descrlbed the
organlzatlon of the nursing department, the stafflng requ\rements, hours of
work, the shift schedules for continuous operations through 24 hours every day
of the week, with particular attention to the staffing requlrements for the
night Shlft in Admltting {Cruickshank at the material times worked ln
Adm\tting on the night shift, 11pm to 7 30am} Albrecht testif\ed that a Nurse
Coordinator is the only management person on slte durlng the night shift
There are no Head Nurses on the nlght shift Admittlng staff for the night
sh\ft is comprised of one RN and a clerk who works in Admittlng untl1 4 am and
then completes the rest of her sh\ft in the Coord\nator's offlce The Duty
Doctor spends tlme in the Department as needed, or as he may wish When hlS
services are not required he would be at rest in the Duty Physlcian'5 room
which lS close to Admitting
The clerk \5 responsible for retrievlng patient files from other parts of the
hospital, when needed, but at times it might be done by the nlght nurse When
retrieving flIes from basement rooms, a security officer would be asked to
accompany the clerk or RN
., ,
18
Albrecht test1f1ed also that the night nurse 1S ent1tled to rel1ef for a one-
hour meal break when she would usually take a rest 1n Adm1tting "In a room
where there's a bed and sink, next to the sitting room" [Exh1blt 6J The n1ght
nurse requires the presence of a security offlcer when patlents are brought In
or present themselves for assessment A securlty offlcer is needed to control
patlents and also, at tlmes, to escort them from Admittlng to a ward The
secur1ty needs are enhanced by the fact that the RN works alone on the n1ght
Shlfts In Admlttlng, except for a clerk who IS not always present
Albrecht's evidence is that on October 10, 1991, Vita Clarke, Head Nurse, r"'
Admlttlng, had glven her the letter dated October 9 [Exhlbit 8J WhlCh she had
recelVed from Crulckshank She spoke to both of them together on the same day
Albrecht recalled much of what Cruickshank told her about the sexual thlngs
Santos had said and done on var10US unspecifled occaSlons, culmlnatlng In an
incident which happened "In early 1991, In the admlttlng area offlce"
Cruickshank's letter asked not to be scheduled to work on the same nlght Sh1ft
when Santos was on duty, explainlng "I haven't made this request before
because I thought I could handle 1t on my own Lately, however its been
causing me a great deal of distress, and I'm becomlng very nervous when
work1ng on my own " In order to deal with this request Albrecht sald
"I told her I would have to take the matter further to Frost, Santos's
manager, but I was not able to contact Frost until October 16 I showed hlm (
her letter and told him about our conversatlon He decided he wanted to meet
Cruickshank "
Albrecht testlfled that Crulckshank and Frost met in her presence on October
16, 1991, "when she told hlm the same events she told me, this tlme she had
her date book wlth her and she gave some dates as to when some events had
occurred " After that meeting, she said, Santos was suspended pendlng an
investlgatlon of the sexual harassment charges, and then he was re-lnstated
before his dismlssal She testlfied also that she told Crulckshank that
every effort would be made to book her on dates when Santos was not worklng,
but she worked very few Shlfts "prior to Santos's dismissal" because "she dld
not make herself available"
i-
\. -
~ .
19
In cross examlnatlon, Albrecht conflrmed that Crulckshank, as a part-t lme
employee, had a rlght to refuse partlcular Shlfts, and that she was not always
able to take the shifts offered to her because she was also a part-tlme nurse
at another hospltal She confirmed also that not all nurses were lnformed of
the Sexual Harassment Policy prior to Santos's dismissal even although she
thought that the Directlve [Exhibit 2, Tab 3J had been placed ln the Manual of
Admlnlstration, which lS avallable at each nurslng statlon ln the hospltal,
and also that the publlcity pamphlets at Tab 14 were not dlstributed to the
staff untll some tlme after March, 1992 Nor could Ms Albrecht say for sure
that the memorandum on sexual harassment dated December 8, 1989 [Tab 9, second
pageJ was actually recelved by all of the staff at QSMHC, because they may not
have plcked up the coples WhlCh had been left for them ln a stack at the pay
office, to be taken when they came for thelr pay cheques, and also because
many employees have thelr pay sent to thelr homes or thelr banks Albrecht's
cross examinatlon concluded wlth her conflrmatlon that she had been aware
that, prlor to March, 1992, there was some bantering and ]Oklng around of a
sexual nature between male and female staff members
[Albrecht was not re-examined J
The EVl dence . of Ri Ckl Grushcow
Rlcki Grushcow, Manager, Employment EqUlty Office, Mlnlstryof Health,
testlfled on November 5, 1993 She testlfied that she had been lnvolved ln the
development and admlnlstratlon of the sexual harassment pollcy whlch flrst
came lnto effect ln December, 1989, and also in the lmplementatlon of the
revised policy which became effective in mid-1992 She described her
responsibllities, WhlCh included the preparation of the July 9/90 letter for
the Deputy Minister [Exhibit 2, Tab 10J and her own memo to personnel
admlnlstrators [Tab llJ, for the posting of informatlon and dlstrlbutlon of
brochures ln workplaces, and for staff tralning on the sexual harassment
POllCY Because she relied on others for the actual distributlon of the
publications to employees at the QSMHC, she could not say personally to what
extent the dlstrlbutlon pollcles were carrled out
- ~. -- ---...-- ----~---
~ .
20
Grushcow testlfled that staff trainlng on the POllCY dld not start at the
QSMHC until the summer, 1992 In cross examination she acknowledged that the
maln reasons for lntroducing the staff trainlng under the revlsed pollcies of
1992 was to overcome the problems [lJ that the employees had not taken
serlously the Employer's determination to enforce its harassment pollcies,
[2J that they did not fully understand or accept what might have been
acceptable before the POllCY was now unacceptable behavlour under the sexual
harassment policy, and [3J that they were unaware of the seriousness of the
consequences p~
t
The Evidence of Mira Bazzul
Mlra Bazzul has been employed in the Minlstry of Health as Advisor on Sexual
Harassment Slnce December, 1989, and also, Slnce March, 1992, she has been the
WDHP Coordinator She testlfied November 5, 1993 Her flrst contact with
Cruickshank was on October 16, 1991, when they met alone for about two hours
At the start of the meeting the complainant was "upset, constrained, had
difficulty in talking and sharing information with me", until Bazzul explained
her role and the policy, and assured her that her information would be
confidential Bazzul testified that the complainant chose the informal process
after the discussion about the formal process had upset her, dlsturbed by the
thought of "more people gettlng to know" Bazzul sald they talked again on (-
October 22nd, when Cruickshank "telephoned because she was upset to learn that
Santos had been suspended and it was becoming public knowledge within the
QSMHC" Later, in a telephone conversation on November 13th, "Cruickshank
expressed her dissatisfactlon with the informal process and indicated she
might want the formal process, but when I explained the formal complaint
would have to go to the Deputy Mlnister, she didn't want it to go that far"
"About November 25, 1991, we received her formal complalnt I don't recall
having further contacts after that "
Union counsel did not cross examine the wltness but indicated he may wlsh to
recall her after the evidence of the complainant is heard He did not exerClse
that optlon
t -
~ ~
I
21
The EVldence of Wayne Yetman
Wayne Yetman testtfted on November 9 and December 1, 1993, wtth the atd of hts
own notes made at the time of hlS two lnterviews with the grlevor At that
ttme he was a manager tn the Mtnistry of Natural Resources, a traIned
Investtgator under Sexual Harassment Policies since 1990, and also a WDHP
CoordInator He was appointed the Investigator of the complatnt agalnst
Santos He had served as Investlgator ln one prevlous case He could not say
exactly when his investigation had started and ended, but he belteves it
lasted about two and a half months, endlng some time in February, 1992
In cross examlnatlon Yetman testifted that Santos had already returned from
h1S suspens10n when h1S 1nvest1gation commenced and that Santos was dism1ssed
after he had concluded hlS tnvestlgation
Yetman's f1rst interview with Santos followed hlS ftrst lntervlew wlth the
complalnant and his purpose was to get the grievor's responses to the formal
complaint The Investigator's stated purpose for the second interview was to
fulflll hlS obligation to the grievor to report back to him on the lnformatlon
he obtained from the complainant and others, including those prev10usly
proposed by the grtevor, and to give an opportunity to the gr1evor to rebut
any relevant information he had obtained in interv1ews w1th the complainant
and others As was hts rlght, the grievor was accompanted by his steward at
the interviews In direct exam1nation Yetman testified that Santos cooperated
wlth him at all ttmes tn the tnvestigatton
In cross examinatIon, Yetman acknowledged a dtsttnction may be made
between sexual comments whtch are intended to be sexually entIcing and
comments of a sexual nature that are joking exchanges between friends, without
any intent10n of having sexual relations He expressed the view, however, that
what may be interpreted by one person as innocent banter could be seen by
another less powerful person as a steppIng stone to further sexual
posstbtlttles In h1S Judgment banter is prohibited if it is offensive,
whether or not it lS intended to lead to sexual relat10ns
I,
I
22
Yetman's evtdence tS certatnly not the best evtdence avatlable on the
complatnant's allegattons and the grtevor's defense We accepted the proposals
of Employer's counsel to hear htm testtfy on hts intervtews as the
Investlgator while we reserved our Judgment on what mayor may not be hearsay
evidence At the same tlme, we questtoned how useful it lS to have hlm testlfy
on what others told hlm when better eVldence lS avallable from the very people
he had lntervlewed and who are able to glve us thelr testlmony dlrectty
He experlenced conslderable dlfficulty givlng us a rellable lnterpretatlon of
his notes on Santos's repltes to unknown questions WhlCh he had not recorded r
"
We found, by hlS own admisslons, that his notes could not be reI led upon for
accuracy on many lmportant pOlnts
We have chosen not to set out in detall Yetman's testlmony Whlle not
completely 19nOrtng his eVldence, we put prlmary wetght on the more direct
evidence WhlCh the complainant and grlevor provlded when they became avallable
to test1fy much later in these proceed1ngs It is unnecessary to refer to the
Investigator's eVldence except perhaps 1n relat10n to particular lssues on the
cred1billty of the gr1evor's or compla1nant's eV1dence It 1S noted that
Yetman d1d not testlfy on his lnterviews w1th the complainant, or anyone else
other than the grlevor
The EVIdence of Helen Gerardi (
Helen Gerard1 test1fled on December 1, 1993 She has been employed as a
Security Supervisor at the QSMHC for about 18 years Gerardi dld not remember
receivlng any correspondence or pamphlets on sexual harassment for
dlstrlbutlon to the securlty staff She had only vague recollections of seelng
any literature on the subJect dlstrlbuted at the work place She recalled
reCelVlng "a whole bunch of papers" WhlCh she didn't read, in a folder she was
given 1n a class on sexual harassment She was uncertain when that was She
could not recognize the publicat10ns WhlCh Counsel showed her
When asked what behaviour is prohiblted by the Sexual Harassment Policles,
t,
'""""
'.
23
Gerardl's spontaneous reply was "I don't understand the whole thlng It s
about going too far It's more than touching someone's shoulder I can't touch
someone's shoulder"
Gerardi testifled she worked the same shift cycle as Santos 2 day shlfts [7am
to 7pm], 2 nlght shlfts [7pm to 7am], followed by 4 days off, then repeat For
some years before hls troubles started wlth the complalnant whlch ended In hls
dlsmlssal, two of her shlfts in each cycle cOlnclded wlth hls Steve Kerr
worked the same shlfts as Santos She descrlbed thelr dutles as well as her
own, how well the three got along togeth~r, how they kept In communlcatlon
wlth each other by "walkle talkie" or the sWltchboard, how they responded
promptly to coded emergency calls, and the records they were requlred to make
on a dally basls
When asked to descrlbe Santos, Gerardl promptly replled "Perfect He's a
happy-go-lucky guy I miss him There's nobody there to joke around anymore "
Asked If she had ever heard him Joke, she replied "Oh, yes, he's always
Joklng " She testlfled that she "got along very well wlth Santos, no problems
whatsoever" Although she worked many shlfts with Santos she never heard hlm
make sexual Jokes "He was always Joklng, but there wasn't anythlng
inapproprlate or I would have spoken to him "
Gerardi descrlbed Cruickshank as a very quiet person who "does her paper work
and doesn't talk much", "she doesn't talk much wlth anybody" She dldn't
thlnk she engaged ln Joklng, and certainly not in sexual banterlng or sexual
Joklng Gerardl sald that although Cruickshank never told her as much, "It
was my oplnlon she did not llke Santos's "joklng all the tlme" She once heard
her say to him "oh, you and your Jokes" She dldn't see Santos react to thls
comment because she dldn't see him do anythlng wrong "You seldom see her
laughing She never laughs "
Gerardl testifled she was in Admitting on several occaSlons when both Santos
and Cruickshank were there, but did not hear them ln conversatlon because "she
doesn't talk much to anybody"
----------
~ .
24
In cross examination, Gerardl explalned that Cruickshank never told her
that she dld not like Santos "It was only my opinlon she dldn't 11ke hlm
because he IS joklng all the time"
The EVIdence of Fatima Raza
Fatlma Raza testifled on December 2, 1993 Prlor to her promotlon In
September,1993, she was the Nlght Clerk for about 10 years, working Sundays
through Thursdays, 11 15 pm to 7 am She usually worked 1n Admitt1ng Mondays C
through Thursdays, until about 2 15 am when she would take her one-hour break
there, and then went to work the balance of her shift in the Nurslng Office,
where she also worked on Sundays She did not recall ever gettlng any
information or publlcations on the Employer's sexual harassment POllCY
Raza described her dutles WhlCh included obtaining patlent flIes or case books
for the night nurse If she was too busy to retrieve a case book the N1ght
Coordlnator mlght go for it, but never the night nurse when she was present
"A couple of times, not often" Raza had to go to the basement to flnd a file
She testified that at least one security officer, sometimes two, always
accompanied her when she had to leave the Admitting area It was her Job to
call security officers to Admitting whenever they were needed They were often
there "Cruickshank didn't express a preference on which officer to call She (
would Just say call secur1ty and I would" She often worked in Admitting on
the same Shlft as Crulckshank, but not when Cruickshank worked weekends Raza
was off on Fridays and Saturdays and worked in the Nursing Office on Sundays
Raza described Santos as very helpful and cooperative "I never had any
problems with -him" and she never heard hlmengage in sexual bantering or
sexual joking Nor did she ever hear Cruickshank talk about sexual things wlth
her, with Santos, or with anyone else She never observed Cruickshank behave
any differently wlth Santos than with any other securfty officer
Raza described Santos as "always helpful to me, I never had any problems with
hlm"
l
-~---- ---
"
25
In cross examlnatlon, Raza agreed there was a frlendly enVlronment In
Admlttlng, wlth a certaln amount of )Oklng and banterlng gOlng on, In whlch
Santos partlclpated When Crulckshank was present she would laugh along WIth
everyone else "when Santos was joklng around" As far as she could see, "she
[Crulckshank] didn't treat Santos any dlfferent than any other securlty
offlcer" She was as frlendly wlth hlm as wtth the others Raza could not
recall If any of the jokes she heard were sexual
EVIdence of VIta Clarke Adamson
Vita Clarke Adamson has been employed at QSMHC Slnce September, 1967 She has
worked as a Head Nurse for the past 8 or 9 years tn Admitting, and prlor to
that for 11 years In the crlSlS unit She testlfled on December 2, 1993 She
recalled seelng publlcations on the Sexual Harassment Pollcy before recelvlng
Crulckshank's complalnt, but could not say whtch publicatlons in partIcular,
or when or where she recelved them She recalled some informal discu5slons of
the pollcy among the staff which did not lnclude security staff When asked
what she understood the pollcy to be, she sald "any unwanted approach by
another person"
As Head Nurse her normal hours are from 7 am to 3 30 pm and she ordlnart ly
had occasions to speak to Crulckshank when thelr shlft overlapped, between 7
am to 7 30 am, when they would dlscuss the events of Cruickshank's nlght
sh1. ft Adamson had not prev1.ously heard any concerns expressed regarding any
security offlcer untll she heard Cruickshank's concerns about Santos, that
"Santos tried to touch her and she moved away and almost fell", and when
Cruickshank assured her "that she had dealt WIth it" and that "tt was ok"
That was thelr first conversation regarding her concerns And on the second
occaSlon, about three weeks later, Crulckshank "told me she was bothered by
it and dldn't want to work wlth Santos" "1 told her to put it
in writing She did, the same day or the next, she gave me her letter"
{Exhlblt 8- dated October 9, 1991} "Both of us went with tt to Ms Albrecht"
l
~ .
26
Vlta Clarke Adamson testlfled she does not recall hearlng sexual banterlng
among the staff 1n the Admltt1ng area, except that "patients would make all
sorts of sexual 1nnuendoes and the staff would glve feedback to each other"
She testif1ed also that "the n1ght clerk or the n1ght coordinator would go to
retr1eve a case book from another area, and only 1f they are not there may
the N1ght Nurse 1n Admitting leave the area to go for a case book"
In cross exam1nat1on, Adamson acknowledged that patIents would occasIonally
say or do thIngs she found personaily embarrass1ng, and "I'd laugh and smile ~
and go back where I can't be seen, and that would be the end of 1t" There
were also occasions when the staff would laugh and Joke about the embarrass1ng
things pat1ents would say ~nd do It would give r1se to some Jok1ng of a
sexual nature among the staff persons present She suggested that the laughter
helps relieve the embarrassment or tensions caused by the somewhat abnormal
behav10ur of the pat1ents
EVldence of Terry Taylor
I
Terry Taylor, a Secur1ty Supervisor, test1f1ed on December 2, 1993 He saId I
he had not seen any publIcations on the sexual harassment policy untIl early
in 1992 His understanding of the policy 1S "not to say or do anyth1ng to C>
offend somebody or you could be in trouble" He testlf1ed he never worked the
same Sh1fts, at the same times, with both Cruickshank and Santos, and only one
or two Sh1fts w1th Santos, and two or three at most w1th Cru1ckshank He sald
he never heard either of them make any sexual Jokes
On one occaS1on, in July, 1991, when he rel1eved Santos after 11 pm, at the
end of his shtft, Cru1ckshank told htm she was glad she dtdn't have to put up
with Santos's Jokes anymore In cross exam1nat1on he explatned that he
understood her to mean she didn't have to put up with him for the balance of
her shift He d1dn't pass that comment along to Santos and he was not aware
whether Cruickshank had done so He had very little experience with e1ther of
them, and he provtded no relevant evidence on the relationship between them
l
- - .~-
'.
.......
C:.(
... , ,.. Margaret Walker
t:VLuenu~ OT
iviur"yun::t Wulke:::r' te:::~tLfle:::U DeLernver' 3, 1993 S lnce March, 1::1::;1, ~he::: hu~ ue:::e:::rl u
Nun, UIY Eeluc..utur' Lrl tht:: t::elULc.lt LUria t ser'v lLt::~ ut the ~~MHi. 1n t(lOt pU~ltlurl
~he has ue:::C:::rI Luur'(hfl(..Itur' fur' the::: nur'K.plw..e::: Ui.~Lf'Lrrllrlut tUrI 6. Hur"c..i~~rnt::rlt Put lLY
["unP] Wlel f.t::~purl~lutt:: Fur" YlVlrlg Lrlfur"rrlc..itlUrI ~t::~~lurIS url Lht:: PUllc..y whlLh tH't::
rnWluutuf"Y fUf' c..i i i ~tuff Tfle:::~e::: ~e:::~~i.url~ we:::r'e::: lrItr"uJuLc:::el lrl ~t::pi.t::H1ut::r, J..SSi
Pr't::v L uu~ ly, f r'urrJ ]urlt::, J..::;oo, ~ht:: wti~ WI RN L rl t ht:: AelrrlL t tL flY ut::pc..ir trrrt:f1i:., u~ wu~
Crulckshank They never worked together on the same Sh1fts, but they would
speak often dUrlng shift changeovers, when the one leav1ng tells the one
arr1v1ng what happened on her shift When Walker worked the afternoon Sh1ft,
Cru1ckshank usually came 1n to start her nlght Sh1ft before she left, and when
Walker worked the day Sh1ft, she would often arrive early in the morn1ng
before Cruickshank left She descr1bed Cru1ckshank as "very qU1et, very
reserved, d1dn't offer much personal data about her Ilfe she d1d a lot to
help people w1th the1r 1ncome tax and she talked a lot about that" Walker
test1fied that secur1ty officers were frequently present 1n the Admitting
Department "They would come and chat, depend1ng on how busy we were They had
to be there whenever a pat lent comes "
When asked lf she ever heard nurses and security staff engage in sexual banter
Walker replied "yes, of course, that's the normal glve and take between the
young people there" When asked for an example of such banter she told us
about a young nurse she llked very much, who worked in Admittlng and whom
people were teaslng because she dld not ~ave a date for a long t1me She sOld
a guard had asked her "how come no one asks you out you have had no boy
friend and no dates for a long time" "That's when Santos said he'd ask her
out but his girl friend wouldn't like it I interjected how come no one asks
me? And Santos said he would ask me if I was 20 years younger They all
laughed It was all very respectful That happened during an evening when I
was worklng ln Admittlng between 1988-91 " Walker descr1bed Santos as warm
and friendly person, as one who would engage in "sexual banter1ng", which she
described as "fr1endly exchanges llke I mentioned earller, and nothlng
offenslVe "
I
-- I
,(
28
On the day and afternoon Sh1fts there were usually a few more people 1n the
Admitt1ng area, usually two duty doctors, one of whom would usually be on the
wards, two RN's; a soc1al worker and a clerk, wh1le on the n1ght Sh1fts there
was Just the RN and the duty doctor, as well as a clerk for part of the Sh1ft
from 11 30 pm to 2 am, and security would be there when needed Walker
testifled that the duty doctor was ln Admitting only lf there are patients
there to be seen, except on the Wednesdays when a certa1n doctor was on duty,
"he never left the department, but stayed ln the lntervlew room all night"
from 11 pm until 8 30 next mornlng She sald also that the Nlght Coordlnator ("
would usually vlsit Admitt1ng about an hour after the night Sh1ft started and
agaln about an hour before the Shlft ended "In the evenlng she stayed about 5
minutes, Just long enough to tell me who would rel1eve me on my break In the
mornlng she stayed 10 or 15 mlnutes at most, to see how the n1ght went and
have a coffee The only other time she would come to Adm1tting was 1n
response to a call or when medlcatlon was needed ln a Unit Only the
Coordlnator has the key for the medication room That would happen once or
twice a month The Coordinator could arr1ve unexpectedly 1n Admltting at
a Imost any time Nor could it always be predicted when the duty doctor mlght
return from his rounds or his rest room"
In cross examlnation Ms Walker described the sexual banter in WhlCh Santos
,~.
was 1nvolved as "normal give and take between young people, not at all an (
uncommon experience among the staff", and as "good natured horseplay,
practical Jokes, and harmless pranks, much the same kind as my own ch1ldren
engage in" She saw the comments Santos had made to her and a young nurse as
chivalrous and amusing, intended only to make them feel good She found hlm
also physically affectionate "I remember we met in the hallway one day after
we hadn't seen each other a long tlme and he gave me a very warm welcome and
put hlS arm around my shoulder "
Walker stated very clearly that she found nothing offensive in Santos's
conduct, and that he was a reliable security offlcer
{
'---.
'.
29
EVldence of Mlchele Wharton
Ms Wharton testtfted on December 3, 1993, that she has worked as an RN at
QSMHC for over six years, for about 2 or 3 years tn Admttttng, and on all
rotattng shtfts She said she met Santos about 4 years ago when they both
played baseball in the hospttal league, and that she is a personal frtend of
Santos and hts fiance She soctaltzes wtth them after worktng hours about once
every few months She testifted she was not made aware of the detatls uf the
complaint by Santos or Crutckshank, that she is aware of only what she was
told by the Investtgator
When asked her opinton on the complatnt, Wharton qutckly responded "I belteve
Santos was dealt wtth extremely harshly"
In cross examtnatton Wharton testtfted that "Joktng around tS common among the
staff at QSMHC", and that tt includes "sexual banter and tnnuendo" She
explalned that "sometimes the new pattents do very strange things, 11ke taklng
off thetr clothes and dtsplaytng themselves, WhlCh is embarrasslng to the
staff You hear the occastonal Jokes They release the tensions and overcome
the embarrassments " Wharton satd tt was not uncommon to hear jokes among
the staff about going on dates and thtngs ltke that, and lt was not uncommon
for Santos to be involved in the Joking, the sexual banter and tnnuendo
She indtcated that she was surprised to hear Cruickshank make an unusual
comment to her early one morntng, last summer, "when I walked tnto the offtce
she sald to me, 'Oh, showtng off our cleavage today, are we?'" "She doesn't
usually say anything Itke that"
EVldence of Johanna Donnelly
Ms Donnelly testifted December 3, 1993 She is an RN employed tn Out Pattent
Department at QSMHC since January, 1991 She said "I don't remember actually
seeing them", when asked about the Employer's policy directtves and
publtcattons on sexual harassment Donnelly worked in the Admttttng Department
June, 1988 to December, 1990, where she observed some sexual bantering and
Joking between security offtcers and nurses She described one tnctdent whtch
-- - --~
.(
.
30
shocked and embarrassed her It happened tn Admttting when she was there wtth
Santos and another nurse named Debbie, when another secunty ofhcer [she
could not recall hts name] brought tn a gift-wrapped box whtch contained a
Ilfe-l1ke clay f1gure of a pen1S She thought Debb1e was also shocked by 1t
Donnelly satd she had worked w1th Santos for over two and a half years, often
on the same sh1fts She described h1m as "n1ce, pleasant and outgo1ng"
Donnelly could not remember ever working a Sh1ft w1th Cru1ckshank, but d1d
have occaS1ons to talk w1th her about pat1ent information when she arr1ved at C'
shift changeovers She descrtbed her as "a nice person" "
EVldence of Ted Cyfko
Ted Cyfko test1f1ed December 9, 1993 He 1S the n1ght supervIsor, a manager1al
pos1ttOn, held sInce he joined the QSMHC as an RN 1n October 1969 He
descr1bed his dut1es as be1ng mainly to assure a safe environment for patients
and staff If he should find any staff person involved 1n improper conduct, tt
1S hts responsibility to document the matter and report tt to h1gher
management He usually works four consecut1ve night Sh1fts [10 30pm to 8 30am]
followed by four days off, and somet1mes he works extra shifts Every second
weekend he works both Saturday and Sunday He 1S respons1ble for d01ng h1S
rounds every n1ght, usually v1s1ting Adm1tt1ng about 11 30 pm, for 15 to 20 ('J'
minutes, "to see how th1ngs are" and would return, if and when called, and
agaIn routinely between 6 & 6 15 am "to see what happened in the ntght" The
rounds take about two and a half hours He spends the rest of hIs shift in hIs
off1ce d01ng his paper work and respond1ng to calls One of his dut1es is to
arrange for RN staff1ng, 1nclud1ng relief for the1r one-hour breaks dur1ng the
mght If a relief nurse 1S unavailable for Admitting, he would take over
wh1le the RN is on her break, relY1ng on security to call him if a patient
arr1ves at the door, or 1f he should otherwise be needed at AdmItting
Asked about occaS1ons when a case book must be retrieved from another unIt, in
situattons where a patient returns for assessment, Cyfko responded "there 1S
f
',--
'l
31
no occaSIon for the RN to go outside the unIt for the chart", ond If requIred,
"I would do It for them, somebody has to be there all the tIme" [In cross
examInatIon, he confIrmed "the RN does not have the responsIbIlIty to retrIeve
case books It would be extremely unusual for an RN to go for a case book
It's practIcally impossible, unless they don't tell me ]
Asked If a securlty offlcer could be there In place of the nurse, Cyfko
responded "If a patIent arrIves and we know them, securIty doesn't have to be
there For security to be there, the nurse has to request It If the pollce
are not there, a female RN wants somebody there from securIty" He testIfIed
that as a rule security are not In the Admlttlng area when patlents are not
there "SecurIty have to do their rounds They wouldn't SIt there hopelessly
They mlght stop and talk when passIng through on thelr rounds"
Cyfko dldn't see much socializIng other than "staff exchangIng greetIngs or
comments about the weather or the1r work, sometlmes they ask quest10ns about
patIents" He testIf1ed he had never heard Cru1ckshank and other staff persons
in the Adm1tting area make jokes with sexual connotatlons He explalned that
he never heard sexual banter among the staff because he is a manager and he
expected their conversation would be different when he 1S there "It'S usually
the case that staff would mod1fy their behaviour, in the presence of a
manager"
Cyfko testlf1ed that Crulckshank had never compla1ned to h1m about Santos's
behavIour toward her He descrlbed her as a qUIet person who reveals Ilttle or
noth1ng about herself personally "She only tells you what she wants you to
know "
In cross exam1nation, Cyfko testified that he had to go to Admitting for
medicat10n on occaS1on, in emergencies He could arrlve there at any time,
unexpectedly, when medicat10n is requlred by one of the wards, because he 1S
"the only person on the night shift with access to the med1cat1on cupboard"
Wh1Ch 1S located in the Admitt1ng area
-_.~ -- - -~-_.- --_._--~--
,t .
32
Also, tn cross examtnatIon, Cyfko agreed he "never found CruIckshank reluctant
tn discusstng problems encountered on her shift" He conftrmed that "she was
always prepared to share these problems" He agreed he would be surprIsed by
lt "if she falled to ment\on a ser\ous problem she encountered with staff on
her sht ft" Cyfko verifted that Cruickshank tS no longer asstgned to work in
Admitting, at a doctor's request, after she refused to carry out his
tnstructions "As an RN she has her own professtonal ethtcs She has the rtght
to quest ton a doctor " He heard the doctor's reasons for his request, he
satd, but CruIckshank "didn't gtve me her story regardtng the doctor's (~
complaint"
Our impression ts that Cyfko's evidence charactertzes Cruickshank as a
forthrtght and assertive person in her professIonal dealings wIth him, as one
who would speak her mtnd, and not at all as a mlld, meek or submlsslve
character
Evidence of Robyn Hart
Robyn Hart testIfied December 9, 1993 She worked at QSMHC since 1986, as a
health attendant, on a part time contract, workIng up to 40 hours per week
Since the summer, 1987 she replaced the nlght clerk Fatima Raza in Admltting,
on her days off, for the Friday or Saturday night shift, and occasionally on
Sundays She worked wlth Cruickshank for about two or three times each month (~
"
on the same night ShIfts At the end of the shtft they would have breakfast
together "once or tWIce a month", and on occaSIon Hart would give her a ride
home She described their relationship as "frtends at work, but not outsIde
work", and "talking with her as I would with any other worker"
Hart saw Santos on occasions when she worked in AdmItting and she described
several conversations between him and Cruickshank On one occasion when
Cruickshank was readlng a magazine they started discussing sleepwear "I told
her I prefer pajamas to lacy nightwear Santos, who was close by, asked
Cruickshank what type of underwear she was wearing and she answered none of
your bustness " She described Crutckshank's tone of voice as firm but not
aggressive "Santos continued, saying what type of underwear he likes" She
(
"-
~
33
thought thts conversatton was tn "late sprtng of 1991" On another occaSlon
Hart heard Crutckshank ask Santos if he had a gtrl friend He "responded 'yes,
but we have an open relattonshtp', and she satd 'that doesn't show much
respect for your girl friend' >>
Hart descrtbed still another occasion when Santos descrlbed Crulckshank as not
betng very creative and a boring type tn the bedroom "She seemed embarrassed
and dldn't answer him Later, she sald to me he wasn't showlng much respect
for her "
i
QUlck asked Hart if she ever heard Crulckshank say to Santos "I could charge
you with sexual harassment" She answered yes and that he had replled "I know
you can", In a Joklng way It dtdn't seem to Hart that she was Joklng Hart
descrlbed one more conversation when Cruickshank told her that she would 11ke
to get marrled and have chlldren
Santos, who was there at the time, said she should let him father her
chlldren Crulckshank asked why and his response was because they would have
nice chlldren
Hart descrlbed a conversatlon when she heard Santos ask Crulckshank lf she
wanted to see somethlng he could show her She thought he meant hlS prlvate
parts She sald she dld not tell Yetman, the Investigator, about thlS tncldent
because she was embarrassed to dlscuss it wlth him Hart dld not say when thlS
happened nor dld she describe any of the Clrcumstances
Hart testifled she never heard Cruickshank make sexual comments to Santos, nor
dld she ever see her encourage him to do so
Hart recalled an occaslon In late spring, 1991, when driving Cruickshank home,
she found her very qUlet She seemed upset "I asked her what was wrong She
said something happened in Admittlng Cruickshank refused to tell Hart what
had happened
Hart saw Santos in the Admltting area more often than other securtty officers,
l I
I
34
sometlmes ln the company of other offlcers, and sometlmes when no pat tents
were present Hart sald she always got along very well wlth Santos who "was
always mannerly to me and very respectful, never made sexual comments to me "
In cross examInation Hart said she dId not know why Santos's sexual Jokes
and tnnuendoes were never directed at her "It may be he respects me and he
understands I don't ltke them" She saId he Jokes wIth her, but never
sexually Santos never made an effort to conceal from her his sexual banterlng
wIth Cruickshank Hart saId she dId not regard hIS comments about an open r
relatIonship with his girl friend to be proposals for a sexual relatIonshIp
She agreed he was JokIng and teasing CruIckshank wIth comments like the one
about her betng boring in the bedroom Hart agreed that Santos's comment about
what she thought referred to hIS prIvate parts were also made in a JokIng
manner She agreed also that Crulckshank's comment, that she could charge him
wIth sexual harassment, could be perceIved to be made In a half-JokIng manner
But to Hart it seemed serIOUS
In cross examinatton Hart agreed that If she has a real problem, she speaks up
and addresses it If Hart had seen Santos's behavIour as a problem she would
have told him so She confIrmed that after observing the exchanges between
Santos and CruIckshank she never told hIm anythIng like "I thInk this bothers
her" or "I thInk you should stop" She never had cause to report Santos's (
conduct to her superVIsor or to hIS She satd she had learned from Albrecht
about Crutckshank's complaInt In October, 1991 Prtor to that Cruickshank had
dtscussed Santos's conduct wIth her They concluded they "were not sure If it
amounted to sexual harassment" "When she asked me I saId why, because to me
there was nothing phystcal, I could only see verbal comments" She dId not see
hIS comments as harassing And Cruickshank had not told her Santos had done
anything physIcal
There was no re-examInation In response to questIons from the panel, Hart
explalned that her observatIons of the interactIons between Santos and
Crulckshank date from the summer of 1987, when she started work In AdmittIng
She satd Santos and Cruickshank had a friendly relatIonshIp They got along
l
'to
35
well except for some of hlS comments "She would tel~ me prlvately, not to
him, that some comments he made were rude to her Only some were rude, not
all She sald the frlendly atmosphere contlnued all the time she was there
except for some sexual comments he would make some tlmes She never heard
Crulckshank say anythlng to hlm about not llklng what he sald except for the
time she told him he wasn't showing respect for her "But I could tell I
sensed when she dldn't 11ke lt, even if she dldn't show lt "
Evi.dence of Dr. Shelly Douma n1
Dr Shelly Doumanl, a physiclan speclallzlng ln psychlatry, testlfled December
10, 1993 She lS now practlclng at the Addlction Research Foundatlon and Mt
Slnal Hospltal, as well as prlvately In the perlod December, 1987, to
December, 1991 she worked at the QSMHC At the beglnnlng, she worked 5 or 6
Shlfts per week, wlth some week ends In the last two years she worked only 2
or 3 shifts per week, malnly the night shifts She testlfied that "Crulckshank
was often there when I worked the night shifts--about half or more of my
Shlfts were worked with her" Dr Doumanl descrlbed Crulckshank as "qulet,
serlOUS, dld more listenlng than speaking I know nothlng about her prlvate
11 fe We would talk about cases We shared an lnterest In psychlatry "
Dr Doumanl saw nurses and securlty staff engage ln sexual banterlng, WhlCh
was not infrequent She described lt as run-of-the-mill lnnuendo "It was more
eVldent durlng the days, when lots of staff were around Lot of staff had
social relatlons with one another beyond the worklng hours They had a
dlfferent relatlonship, joking about all kinds of things they saw ln
magazines, or making comments about the sunshine glrl in the Sun, that kind of
thing" She dld not regard the comments as lewd or offensive "I wasn't
personally offended by them, but I can't say if others received it that way"
She offered two explanations why she did not see Cruickshank participate in
the sexual banter "flrst, she worked nights when the bantering day Shlft
group was not around, and secondly, knowlng her as I do, I would be surprlsed
lf she would engage in sexual banter, that kind of conversation"
36
Dr Doumanl saw Santos "fa1rly frequently, when I worked evenlng and nIght
Shlfts" and descr1bed h1m as "outgo1ng, talkative, a Jok1ng type of person"
She testif1ed that on one occaston [she could not recall lf 1t was 1n July or
later, but surely before October, 1991J, Cru1ckshank conftded 1n her about
some dtsturbtng comments "of a sexually provocatwe nature" Santos had made to
her Cruickshank told her that she threatened to report htm but he had laughed
about it "She hesitated to report him because he was engaged to be marrIed,
or was married to a nurse, and she dtdn't want to cause problems to the
relat10nship I told her to report 1t tf it conttnued or if she felt unsafe r
She doesn't show her emotions readily but I felt she was afra1d and anxtOUS so
I offered to stay up wIth her Santos was working that nlght I told her to
feel free to call me if there were any problems Santos cam~ by on a number of
occaSlons that night but soon left He usually stays to chat Cru1ckshank
wondered 1f my presence was a deterrent He mtght have suspected she told me
about l.t and therefore may not have found It comfortable to be there"
Dr Doumani did not speak to anyone about the matter at Crul.ckshank's request,
"but some months later Dr Logan phoned me because she spoke to him about tt"
"The next ttme I heard anything more about tt was when Yetman called me for an
tnterview "
Evidence of Dr. Vance logan
Dr Logan, a Toronto psychiatrist tn prwate practice, testifted December 10, (
1993 Durl.ng hts residency at QSMHC, February, 1989, to August, 1992, he
worked 3 to 6 afternoon or night Shlfts per month Some shifts were back-to-
back, usually weekends He often worked the same shifts as Cru1ckshank and
Santos, but never saw them engage in sexual joking or banter He said he did
not get to know them very well because he didn't often have opportunities to
chat on nlght shifts He descrtbed Cruickshank as pleasant and good at making
the hospital a nice place to work He described Santos as a good security
guard who tS much appreciated in emergencies "He has a much appreciated
presence about him Because of the state of mind of the people who come to
emergency, they are usually very agttated and Santos's presence is always
he Ipful " Dr Logan expressed hts appreciatton that nurses and securtty
l
----- --
37
interacted In a way that made Queen Street a pleasant place to work The whole
thlng worked well"
Dr Logan testlfled on an Incldent he wltnessed when he entered the Admlttlng
Department at about 11 30 pm, one nlght In the summer, 1991 " I walked In at
the front part, where the glass partltlons are, and dldn't see anythlng
strange untll I came around the door [1103J, the most westerly door where I
entered Withln the sWlng path of the door, a foot or two wlthln the entrance,
I saw Crulckshank on her hands and knees, crawllng away from Santos who was
standlng over her She got up I walked by Santos Crulckshank sald, 'I'm glad
you're here Don't go ' It seemed strange Somethlng odd about the whole
thlng Crulckshank was flustered Santos stood by the door The two carrled on
a brlef conversatlon I sat down and dldn't say anything then I heard hlm say
she was clumsy and trlpped And she sald, 'You know that's not true I don t
want to talk to you any more' "
Dr Logan testIfied that Santos left after standing at the door a mlnute or
two He sald that the room In WhlCh he found them was not vlslble through the
glass partitlons from the outside corrldor In WhlCh he had approached them
They could not have been seen from the outslde before he reached the door
After Santos left Logan asked Cruickshank what had happened "She was
( reluctant to talk I pressed her She didn't say she had sllpped and fallen,
but that he had grabbed her and In her struggle to get away she had fallen I
don't remember her words I don't recall her saYlng anythlng about hlm klsslng
or fondling her I wlsh I had taken the time to write down everythlng she told
me because my memory does not serve me well" Dr Logan s'aid' It was hlS .
impression that It was a sexual assault,but he dIdn't see it and couldn't
recall her saYlng anythlng to that effect
Dr Logan testlfled he could not remember any details about what she told hIm
durIng the 15 mlnutes they had talked His general ImpreSSIon was that she
told hIm about some epIsodes which had happened over a long perIod He saId he
suggested to Crulckshank she should report the IncIdent to her superVIsor
. -- . _. -
,
38
"I asked If she had told anyone about prevIous episodes, and she said only
Dr Shelley Doumanl I was very concerned about leaving her alone I knew at
the time she would not report It that night I told her to page or phone me If
she had a problem "
Although he saw her frequently after that incIdent, they didn't discuss It
again for a long time He recalled making himself available to her to talk
about it, but she did not volunteer anythlng until he ralsed the matter a long
time later "Her response surprised me She sald, 'what are you talking r~
about? Where are you coming from? You haven't seemed interested You haven't
brought it up agaln ' That was true, I hadn't I had made myself avaIlable,
but I hadn't brought It up " ~e did not discuss the matter again with
Cruickshank until after he -had been contacted by Yetman, the Investigator
"I called her She was very uncomfortable about telling me anything She was
very suspicIous She acted lIke she wondered who's side am Ion, llke she
couldn't conceive I was trying to help her She would allow me to ask her
questions about the incident, which she would confirm or deny, but she would
volunteer nothing I got no more information from her after our Initial
.
discussion the night it happened"
Dr Logan testified he could not remember when the incident had happened, but
thought It was the summer of 1991 He had phoned Dr Doumani about it the next C'
day, but nothing had come of that discussion At Cruickshank's request, he
told no one else
In cross examinatIon, Dr logan confirmed, that CrUIckshank had always
shown reluctance to dISCUSS the incident with him, even inItially when he had
pressed her to tell him what had happened "She had f~ars that no one would
believe her, including the nursing staff She thought they would not support
her, that they would create too much difficulty for her"
Dr Logan confirmed that he knew nothing about Cruickshank's complaint until
he was approached by Ms Albrecht in October, 1991, when she showed him the
written complaInt, outlined the incidents reported by Cruickshank, and
{
'-
I
I
39
lnformed hlm that he would be called by the Investlgator He sald he had
spoken wlth Albrecht after she had met wlth Crulckshank about her complalnt
She told hlm he would be called by Yetman and helped hlm refresh hlS memory of
hlS dlScusslon wlth Cruickshank Albrecht provlded him wlth detalls of the
complalnt He asked her lf lt was approprlate for him to call Crulckshank She
said lt was When he contacted her, he found "she was not at all forthcomlng
She would only conflrm what I sald she had told me "
In cross examlnatlon, Dr Logan said he did not see Santos agaln that nlght, .
after the lncldent, and he dld not see hlm make coffee or brlng a plzza to
share with Crulckshank "I mlght have come back to see her, lf everythlng was
ok, but I'm not sure" There was no re-examlnatlon
The EVIdence of Kathy Merle CruIckshank
Cruickshank testlfied on May 2, 4, 10, and 11, 1994 Her cross-examlnatlon was
on May 10-11, followed by a brief re-examination which completed the May 11th
hearing day Originally from Trlnidad, she qualified as an RN in England about
17 years ago, before she came to Canada in 1982, where she agaln quallfled as
an RN She started work at St Mlchael's Hospital, Toronto, ln April, 1982, and
later at QSMHC as a full-tlme RN in 1986 She changed to the part-tlme staff
l ln 1988 because "I wanted moreflexibllity and there was lots of work
avallable" She testified it was her preference to work the night Shlft [11 pm
to 7 30 am] in the Admitting Department, where, since the summer, 1988, she
worked a full-time schedule on a part-tlme status, replaclng a full-time
nurse [Note cross ex~ninatlon below]
Crulckshank testified that from the time she started worklng nlghts ln
Admitting she worked with Santos most of the tlme, whenever he worked the same
shift They got along reasonably well, ln a friendly manner "We had regular
conversations that working colleagues have" Cruickshank testifled that before
1989 Santos dld not "make any comments or engage ln any actions of a sexual
nature" towards her
40
Her flrst alleaatlon. She testlfled that she could not recall when, but she
bel1eved it started one day 1n 1989 "with him pulling the top of my blouse and
looking down the front part" "1 sald you're a pervert and 1 walked away"
Asked what was her "tone", she answered, "louder than usual, ser1ous" When
asked what was hlS reaction, she replied "he just walked away too" In
response to the questton if others were present, she said there were, but she
could not remember who they were There was nothing more in her eV1dence
concern1ng the circumstances or context 1n Wh1Ch this alleged event had
occurred ~.
Her second alleaat1on. When asked tf there was anything else happened tn 1989,
she answered, "he 1nvtted me to meet hlm in the physiotherapy room", WhlCh is
on the second floor above Admitting, In the same bUl1dlng She could not
remember "the exact month or date", only that It was "before my break at 4am"
Asked what was her response, she answered, "1 sald no " Asked If she was
serious or joklng, she answered "serious" When asked if she thought Santos's
offer was serlOUS or joklng, her reply was "I think he was 'serious" She could
not recall if anyone else was present at the time There was nothlng more in
her eVldence about the circumstances or context of th1S alleged event
Her third alleaation. Cruickshank said, in response to counsel's question, (
she could not recall any other incident in 1989 Ms Quick then asked if she
could recall Santos making any comment about what k1nd of relat1onsh1p he
wanted w1th -her The question helped her recall an incident when Santos told
her he d1dn't want to marr.y her,he Just wanted to have fun She was uncerta1n
when that comment was made, but thought it was some time before the end of
1989 She said she was sitting next to the filing cabinet, in her regular
seat, dotng her paper work at the nurs1ng statton When asked what was her
answer, she said, "1 didn't respond" When asked what was her reaction, she
replied "I thought it was silly and stupid" In response to counsel's question
"was he serious or joking?", she said, "1 think he was serIous" She said she
did not tell anyone about this incident There was no additional evidence
gIven regardIng the circumstances or the conversational context in WhICh the
alleged comment was made l.
41
Her fourth alleaatlon. Counsel asked lf anythlng had occurred ln the basement
when Santos was escorting her to flnd a patlent's flle Her reply was
"Yes, ln February or March of 1990, I'm not sure the exact date I was worklng
ln Admlttlng It had to be durlng the week, not on a weekend, because on
weekends I am the only one there, and I wouldn't have left the Department for
a file on a weekend" She sald Fattma Raza. the clerk. worked that nlaht
Prlor to that incldent she had gone to the basement to flnd a flle not more
than three or four times a year That partlcular nlght the doctor wanted the
case book for a patlent After flndlng the case book number ln the computer
she knew where to look for the flle She then called Security for an escort
Santos came and they went to find the case book "He was very frlendly It was
between one and two ln the mornlng We took the elevator near securlty to the
basement and followed the corrtdor to el ther Um t 2 or Um t 4 "
Her memory was not clear on the events and Clrcumstances She was not sure
which unlt they had gone to, whether tt was to unlt 2 or 4 She dld recall,
however, being escorted by Santos to search for a flle on a preVlOUS occasion,
but she could not recall when or where that was, but she expressed confldence
that lt had been to a dlfferent unlt and not the same unlt ln the basement
She descrlbed the route they had taken on thlS more recent occaSlon, from the
elevator near securlty to the basement, then through a corrldor WhlCh led to
elther Unlt 2 or Unit 4 She was sure it was not to Untts 1 or 3 But she was
uncertaln whether lt was to 2 or to 4 because, as she explolned, there was
nothing in her mind "to stand out as marktng a difference between 2 or 4" Nor
could she recall lf she had found the ftle She said they took the "regular
route" back by the corridor to the elevator and the maln floor [Note cross
examlnatlon below]
On the way ,back, she sald he pushed her against a table in the hallway "He
tried to kiss me and undo my blouse " "I remember struggllng a little while
to get out of it and saying 'leave me alone, leave me alone' He flnally let
go It was gOlng through my head, am I going to be raped" When asked how
long lt took, she replled, "it seemed qUlte a whlle"
42
In response to the questIon, "What were your emotIons at the tIme?" she
answered "ThIngs happened so very fast I can't recall what were my
emotIons "
After CrUIckshank had descrIbed this Incident, Employer's Counsel asked,
"durIng the struggle dId he try to touch you on your body?", WhICh InVIted the
follOWIng elaboratIon "he was trYIng to kISS me and undo my blouse, he was
trYIng to fondle my breasts, all at the same tIme" Thus, to her inItIal
descrIptIon of the Incident she added the words "he was trYIng to fondle my C
~~~)/
breasts, all at ~he same tIme"
On theIr way back upstaIrs to the maIn corrIdor, returning by a dIfferent
route, CrUIckshank saId she told him "If I report this you can lose your Job
and he saId yes I know And he saId to me, something lIke 'you're so
nervous' " AdmIttIng was busy when they got back The doctor and Fatima were
there with two security staff "One was Steve and the other I can't remember
Steve was looking at me strangely, more intensely than usual, WIthout saYIng
anything "
{We note here CrUIckshank's eVIdence on the presence of the night clerk,
Fatima Raza Several Employer witnesses confIrmed that it is the duty of the
night clerk to retneve pahent flles and that the mght nurse would go in C
search of a patIent file only in exceptIonal circumstances, when both the
night clerk and nurse coordInator are not avaIlable It should be noted also
that Raza In her testimony gave no explanation why she had not gone in search
of the file on thIS occasion rather than Cruickshank Nor dId CrUIckshank
explain why she went for the fIle when it was Raza's duty to do so }
When asked if she told anyone about the incident, CrUIckshank replIed "No,
not at that time I felt uncomfortable Santos was a very popular person I
didn't want to get involved with what was going on there He was popular WIth
the females He has lots of friends there, male and female At Queen Street,
you have to go along with the crowd or else you're alienated I planned to go
away I had a flight booked to England for July 8th"
l__
._.
43
Her flfth alleaatlon. When Employer's counsel asked Crulckshank lf there was
anythlng else before she went away ln July, 1990, she replled "I had asked
him to help me wlth somethlng and he sald 'you're too tense, relax, you need
to get lald' " In response to the question lf anyone was present when he made
that comment, she sald "two Datlents and a doctor were there. Steve Kerr was
standina close to Santos who was walking past Steve when he made the comment "
Asked what was her reactton, she satd "I was upset It was not approprtate
He dld what I asked hlm and it was hlS Job to do tt There was no need for the
comment" When asked if she satd anythtng to htm about tt, she answered "No,
I kept thtnktng about myself, am I that tense?" Cruickshank could not recall
;
when this tnctdent had happened {Netther Kerr nor the doctor were called as
wltnesses to corroborate thts allegatlon}
Her stxth alleaatton. Employer's counsel then asked Crutckshank tf there was a
dtscusston about soccer prlor to her departure in July, 1990 She satd, "Yes,
tn June People on staff were talktng about soccer I was asktng tf anyone
would tape the soccer for me He told me I didn't need pay TV He was rtght "
Later, she told him she had picked up the games She testifled that "he asked
if he could come home wtth me and sleep and we would watch soccer" When asked
what was her reply, she said, "I said no " She was asked lf Santos was serlOUS
or Joking when he asked this Her reply was, "I don't thtnk he was Joking I
thlnk he was serious" She replled "no" when asked tf others were present
Counsel asked Cruickshank tf there were any other inctdents before she went on
leave tn July, 1990 She answered "not that I can recall" 011 her return tn
September, 1990, she worked much more tn other wards than tn Admlttlng, untll
about the end of December, when "one of the mght nurses had left" and she
resumed her regular night shifts in Admitting "For a few months Santos made
no comments of a sexual nature and we had normal conversations "
Her seventh alleaatton. Counsel asked Cruickshank about the flrst tnctdent
that happened after her return She repl ied "I went to the bed and stnk room
for my rest He was already there lytng on the bed He got up and grabbed me
around the waist I struggled .a little blt He let go and left qutckly "
Crutckshank's testimony is that no one else was in Admttting, that there
- "---- ~ - ---..-- -- ---
..~
44
wasn't a relief nurse present, and that Cyfko had arranged to take calls
dunng her break Asked lf Santos had said anythlng ln the lncldent, she
replled she did not remember She was asked, "did you report the lncldent at
the tlme?" She answered "no" When asked "why not?" she replled "Because
he's a popular person He has many friends I dldn't want to be lnvolved I
can't toke the talk, the gosslplng around the hospltal "
The elahth alleaatlon was 0 similar lncldent WhlCh hod happened shortly after
the seventh She sOld she was ln the some bedroom when Santos come ln "He f~""
tried to grab me, but he dldn't I ran out screamlng He called me a party
pooper and left " {See cross examination regarding the bedroom lncidents }
When asked lf she ever sald anythlng to hlm after that incident, she answered
"I told hlm 'I will tell your flance If you don't stop' He sald 'my flance
doesn't core what I do os long as I don't leave her--actually, she wouldn't
mlnd watchlng' "
Asked If she ever ralsed the subJect of sexual harassment wlth Santos,
Cruickshank replied "Yes, ln March or April, 1991, I pointed out to hlm an
artlcle on tt tn Tooical, or Tidbits or in OPSEU News Two other securlty
staff were there They read the artlcle ln front of me " When asked tf her
tone was sertous or joking, she answered "sertous" When asked about hts r
t
response, she satd she could not recall, but she thought "he dtd not toke tt
seriously" When q~estioned about hts demeanor, she satd he was "his usual
self" [See cross examlnation)
Counsel asked Cruickshank if she hod asked Santos when he was getttng married
She answered "yes, several times" When asked why, she answered, "I thought tf
he got married he'd leave me alone"
Employer's counsel asked Cruickshank tf, in the sprtng of 1991, she had said
anything to Dr Doumani Union counsel outte orooerlv ob1ected to thlS as a
leadino auestion whtch put in the wttness's mind 0 time which is dtfferent
~
45
from the tlme of the conversatlon glven by Dr Doumam{ July or later}, In her
eVldence The questlon and answer were wlthdrawn and Crulckshank was not agaln
asked when her conversatlon wlth Dr. Doumanl had happened However, when she
later came to descrlbe the lncldent of July 19-20th, {tenth alleaatlon} she
was able to recall that "I spoke to Dr Doumanl less than two weeks before"
{On several occaSlons Ms Quick was cautioned on leadlng thlS wltness }
Crulckshank descrlbed her conversatlon wlth Dr Doumanl One nlght she was
slttlng ln the nurslng statlon and Santos was slttlng at the computer When
Dr Doumanl came ln, Santos got up and left She started telllng Dr Doumam
(
about some incidents dating back to 1989 She told her about the tlme he sald
"he dldn't want to marry me, and that more recently he sald he wanted to marry
me, WhlCh made me thlnk he was gettlng desperate>> Dr Doumanl asked lf she
had told anybody "Uo to thlS tlme I had not told anybody but her. but I
dldn't tell her about the lncldent ln the basement >> Dr Doumanl asked who
does she talk to about thlS "I sald maybe my head nurse or superVlsor " Whlle
they were talklng Santos came and looked in and went out agaln Dr Doumam
said Santos looked very susplcious When he came back once more, Dr Doumanl
asked her when she was going on her break "I gave a tlme I knew was not
correct >> After he left "I asked her why she would want to ask me that ln
front of Santos and she explalned, 'I wanted you to glve hlm a wrong tlme so
we can throw hlm off' >> After that, she sald, Dr Doumanl stayed wlth her all
nlght, or as long as she could, on Saturdays "After that, I can't remember
telllng her anythlng else >>
Her ninth alleaatlon Counsel asked if there were any further lncldents after
she spoke wlth Dr Doumam Crulckshank replled "Yes, Santos lnvlted me to
meet him on hlS break and sald 'don't worry I'll be very gentle, you don't
have to worry if you are tlred ' >> When asked what she had understood thlS to
mean, she said, "my understandlng was he wanted physical contact with me >>
In response to a further question, she said "My impression was he was
senous, he wasn't joking>> She dld not describe the context or Clrcumstances
in WhlCh these alleged remarks were made Cruickshank could not recall when
thlS happened, except that lt was after the two incldents ln the bed and slnk
room, and after her conversatlon with Dr Doumam
I
46
[In cross-exam1nation she contrad1cted th1S, saY1ng it was before her
conversat1on w1th Douman1 ]
Her tenth alleaation. Counsel asked Cru1ckshank "do you recall any more
1ncldents wlth Santos after your d1Scuss1on with Dr Doumani?" She repl1ed
yes, the Inci.dent of the maht of Julv 19-20th. 1991. When asked "how do you
remember that date", she explalned that she had spoken to Dr Doumam less
than two weeks before that nlght Dr Doumant only worked Saturdays and the
Incldent was not on a Saturday "It was on a Frlday, the only day I'm alone In
the Department " She descrlbed the events of that ni.ght In thlS manner (~
The Sh1ft beg1ns at 11 pm The evening staff left at 1105 Santos stayed on
He was sitting at the computer desk readlng somethlng They talked as
colleagues The conversat1on was qUlte appropr1ate until it came to a pOInt
when he sald 'you're losing welght, your breasts are gettlng small' She
19nored h1m He contInued sittIng and reading h1S paper The nIght clerk was
not there She never works on a Frlday nlght Cyfko, the night supervisor, had
been there between 12 30 and 1 am Santos was there when Cyfko came and when
he left, but not In between AfterCyfko left she was sitting at the night
nurse's desk and Santos was a few feet away at the clerk's desk, where the
computer 1S She went to open the 1103 door {south side, cllnical area} to go
to the medlclne room He suddenly came behind her and arabbed her around the
\^IQl st Hts shoulder was aga1nst the 1103 door The door handle was In her hand
( ('
but she couldn't get out She contlnued to struggle to get away He held her
t1ghter and tlghter He was behlnd her, leaning agalnst the door and holding
her with both hands He was grabblng her blouse She was pushed agalnst the
table to the left of the door She sOld 'let me go, let me go'
When Employer's counsel asked Cruickshank what Santos said while she struggled
she answered he commented on how her breasts felt in the basement incident
When asked how long the struggle went on, she answered she dld not remember
but It was "not as long as in the basement" It ended when "I suddenly tumbled
over and fell on the floor" Asked "why did you tumble", she explained she was
struggling to get away wlth all her force when he released her suddenly She
sald she fell forward on the floor, hitting her head on the desk cha1r where
she had sat on the north sIde of the room She dtdn't hurt herself
(
..-..........:::
47
Counsel asked what d1d Santos do She repl1ed 1n th1S way
He stepped forward a few steps to help her up. He stepped back when she refused. Then he came
again when she was almost on her feet. He extended his hand to help her When she was getting up
she saw Dr Logan coming down the hall as he was entering room 1106 [the interview room]
Everything happened so fast it was hard to remember exactly, but she is sure that she was in the
process of getting up when she saw him. He went into 1106 She came out of 1103 [clinical staff
area] and went into 1106 and asked him to stay in the Department a while. He said yes. She came
out of 1106 and returned to 1103, and through the 1103 door She doesn't know where Santos
was when she went to speak to Dr Logan. He was not in 1103 when she returned.
Doctor Logan came out of the interview room into the clinical staff area and sat down .He asked,
'did he touch you?' and she said yes. 'Did he do it before?' he wanted to know, and she shrugged
her shoulders. Dr Logan wasn't there very long, maybe five minutes, when Santos came back
and said 'you tripped' She didn't ask him anything. Dr Logan didn't ask him. Santos stood
for a brief moment at door 1103 and then sat at the computer chair Dr Logan didn't stay very
fong. Before he left he wrote her a note which said 'call me if you are worried about anything'
She didn't recall if he spoke to Santos before leaving. After the doctor left Santos asked her about
running to the duty doctor, and she replied 'I'm not sure what I'm doing' She was too confused
and mixed up when he asked. Santos came back several times because it was a busy night with
patients coming in Later that night Santos came back with two security staff, talking about what
had happened, asking 'why are you making so much fuss? I do it all the time to other people and
they don't say anything' He mentioned Debbie,and said, " do it to Debbie all the time' She went
quiet. She didn't say anything to him, but she asked herself if 'am I making a big fuss'
That night Santos had to come back several times to Jet in police and patients. He brought her
some pizza. Santos calTle to open the door when the police brought a.patient. She called Dr Logan
to see the patient. Santos made coffee after the police had arrived. When she returned to the
clinical staff area after the patient interview, she asked him why he was making coffee for a
patient. He said 'the coffee is for you'
Later that night, Dr Logan and she were together in the medication room. They talked again
about the incident. He gave her advice. He told her to talk about it to Debbie McKeown. At the
time she didn't want to talk about the incident any more. She left the medication room and told
him she would talk another time. She was quiet. She didn't discuss the incident with anyone else.
48
Cruickshank testlfied she spoke to no one other than Dr Logan about the July
incident except Vlta {the head nurse} "She asked me what I was gOlng to do
about it I said I'll handle lt She asked how, and I said I'll find a way"
Crulckshank told us "I wanted to handle 1t in a way to avoid creating a scene
at Queen Street I didn't want to create anything at Queen Street, period !"
************************
Cruickshank's testimony is that after the July 19th incident she did not turn
down any shifts at QSMHC, and she did not do so until after Santos was fired
as the result of the investiaation of her comolaint. "after evervonefound C'""
out" Her 1991 attendance record {Exhib1t 12} shows she only worked two Shlfts
per week, with few exceptions, in the per10d June through September She
explains she worked fewer shifts not because she refused shifts, but because
"at that tlme, before, during and after the 1ncident, fewer shifts were
aval1able in other departments as well as Adm1tting" She sald also that she
continued with her part-time .employment at another hospital She would
normally call QSMHC a week in advance to arrange for work on the shifts and
dates she had ava11able, but could not choose where she would be ass1gned
Cruickshank's eV1dence 1S that she had no problems with Santos after the July
19th incident She could not recall how many shifts they worked together,
perhaps not more than one or two She found some change in Santos It seemed
to her "he was sensitive and feeling gu.ilty after a while" (
Cruickshank testified that she wrote her supervisor Vita Clarke-Adamson, Head
Nurse, Central Admitt1ng, on October 9, 1991, at her request, the day after
she had asked her to arrange with Santos's supervisor "not to schedule us at
the same time" She believed that was the solution to her problem Her letter,
dated October 9, 1991, [Exhibit 8J stated
"I want to ask you please not to schedule me to work in Central Admitting at nights when Mr
Santos the Security staff is on duty
"He has been sexually harassing me both verbally and physically and has attempted to use
physical force in the process. I haven't made this request before because I thought I could handle
it on my own. Lately however it has been causing me a great deal of distress, and I'm becoming
very nervous when working on my own in your department.
"I would like you to handle this with the minimal amount of scandal, as I do not think I can cope
with one."
C,
49
Crulckshank explalned what she meant by her word "dlstress" ln thls letter
"I was aettlna fed uo wlth gettlng away from hIm, llke lnCldents In the bed
and sInk room, struggling out of sltuatIons, the actual InCldent on July 19th,
and haVIng to lie to hlm about my break tImes"
Cruickshank's testImony is that prIor to wrIting the letter she had not turned
down any Shlfts When asked lf there were any perlods she dId not work because
of Santos, she replIed, "Yes, the mornlng after I spoke to Sue Ellen [In the
Personnel Department], around the week of October 21, 22, or 23, when I found
out that Santos was suspended" She was distressed by his suspenslon
"ThIngs were circulating among the staff I dIdn't feel comfortable going to
work I called In SIck one night and VIta cancelled the other two ShIfts that
week There was a perlod after that I dIdn't want to go to work I dldn't want
to go through the front door and I asked Vlta to plck up my cheque for me "
Crulckshank testIfled she went wlth Vlta to see Albrecht a few days after
she had written her letter
"She [Albrecht] went through the letter with me and said she had to give it to Santos's
supervisor She said he has been harassing a lot of female staff I didn't give her any details
about the incidents and she didn't ask for any explanations. J didn't tell her about the July
incident because I was hoping the shift schedules could be arranged Albrecht informed me about
the sexual harassment policy and advised me to see one of the Sexual Harassment Advisors on the
list she gave me."
Soon after that meetIng, Crulckshank met with both Albrecht and Santos's
manager, Robert Frost CruIckshank's testimony 1S that she went to meet Frost
still hoping the work schedules could be adjusted, but he showed no lnterest
1n that "He wanted deta1ls and reasons about my letter First, I told hlm
about the July 19th inc1dent He wanted to know if there were others and I had
to menhon the incident 'in the basement He became furious and he sald, 'Thls
is assault He can get 6 years for this ' He banged hlS fist on the desk and
sald, 'OK, he's fired ' " {We note that Mr Coleman obJected to Ms Quick
leadlng the witness on what was discussed at her meetlng WIth Frost}
QUIte clearly, that was not what Cruickshank wanted She wanted only to have
thelr shifts separated because she was aettlna fed uo with gettIng away from
him" and the kind of inCIdents she had described
50
Crulckshank testlfled that not long after the meeting wlth Santos's manager,
she was called at home by Sue Ellen, Personnel, for a meetlng
"That's when she said, 'by the way, he was suspended thlS mornlng' That's
when she started to make me feel gUl1ty She sald, 'you may have to leave your
job, lf there's anythlng ln the closet lt will have to come out' I asked, '15
there any way for Santos to keep hts Job while the lnvesttgatton goes on?' She
answered no I couldn't ask for explanatlons I was too upset at the tlme I
was tn tears "
Crutckshank testtfted she went to see Mira Bazzul, a counsellor on the list
r
she was given, who explalned the sexual harassment POllCY and her optlons On -
Mtra Bazzul's advtce she went to see an Employee Counsellor In November she
was called by a Unlon Representatlve, appointed to represent her, whom she
met only once, a few days after the call The Union Representattve told her
the case was unlque, the flrst sexual harassment complalnt at QSMHC, and that
"nobody ln management is sure about what they should do with tt" "She advlsed
me I can do one of two things pursue the complalnt through the formal route
or settle it informally" The Union Representative recommended a voluntary
settlement "but she could not guarantee me that I wouldn't have to work with
htm ln the future"
Cruickshank agonized over her alternattves She discussed tt wtth "some people
not related to Queen Street" and found "no one wanted to make the deCtSl0n for
me" She then called Albrecht and told her "I dectded to accept an apology and (
four days loss of pay" Crulckshank sald Albrecht told her "If that's what
you want that will be consldered, bu~ we can't accept that" Cruickshank
testlfied a Union-Management meetlng to deal wlth the complalnt had been
arranged for November 11th or 12th "On the morntng of the meettng I got a
call the meetlng was cancelled I knew nothlngmore Nobody was talking to
me " She said she felt frustrated by it all and that she "had to do somethtng
to get thlS thing over and done wlth " Feeling thwarted by management's
apparent failure to support her wishes to. resolve the matter quickly,
Crulckshank called Mira Bazzul, the harassment counsellor, who advised her to
file a formal complatnt She signed the "Complaint Form" 25th November. 1991
[Exhibit 16J
I
, '--
51
CruIckshank testIfIed that neIther before nor after Wr\tlng her October 9th
letter had she dlscussed the matter wIth Santos She met wIth the Investlgator
three tlmes She was lnformed of the results by mall some tlme ln Aprll, 1992
"I understand the result was that Santos lost his job" She told us that as
a consequence of thIS, "nobody would talk to me at the hospItal When I walked
Into a room everybody stopped talking The staff on the other floors were
very cold to me If I had to do It agaIn, I would not There's too much
anxIety, too many problems, and too many people Involved"
At the conclusion of CruIckshank's examInatlon-ln-chief she was asked lf she
ever did anythIng to Invite Santos's sexual cOlm1ents She answered "no"
To the questIon "How would It affect you If Santos returned to the work
place?" she replied, "I am not sure" She was then asked a slmllar questlon
"How would It affect your work enVIronment If he returned?" Before answerIng
the questIon dIrectly she told us that she knows what most people at Queen
Street think about thIS case Then, returnIng to the questIon she saId
"provIded he doesn't work wIth me on the same ShIfts and I don't work wIth
him, it should be OK"
*************
It should be noted that the examInatIon-in-chief of Ms Cruickshank, as well
as several prIor witnesses, was marked by many objectIons from Mr Coleman on
leadIng questIons by Ms QUIck We frequently cautIoned her not to lead her
witnesses, in that her questIons Improperly contaIned the desIred answers or
suggested or implIed the responses she was lookIng for ThIS deleteriously
affects the quality of the eVIdence
Throughout the proceedings, we were asked to resolve several objections from
Union counsel on Issues of hearsay and relevance On each occasion, the vice-
chair ruled he will gIve Employer's counsel a wIde latitude in consideratIon
of the nature of the case, on evidence she wishes to adduce, subJect to our
later determInations as to relevance and weIght However, the vIce-chaIr urged
her to take some care not to waste valuable hearIng tIme presentIng evidence
52
Wh1Ch she should be in a pos1t1on to know would have no relevance to the
1ssues in th1S case Counsel were rem1nded that the responsibl1ty res1des w1th
them on how they conduct the1r respect we cases Ultimately counsel are
respons1ble and accountable for the quality of the evidence they choose to
present The v1ce-cha1r cautioned counsel that hearsay eV1dence carr1es very
11ttle if any weight and 1S not the cogent and convinc1ng evidence required 1n
this dism1ssal case
We note also that on several prior occaSlons and again at the conclusion of (1
Ms Cruickshank's examination-1n-chief, Mr Coleman brought our attent10n to
h1S problems in obta1ning from the Employer the documents he needed for the
proper preparat10n of the defence Th1S delayed the commencement of the cross-
examinat10n He pointed out that some documents were rece1ved only after
cons1derable delay Certain documents he requested 1n December, 1993, were not
rece1ved unt11 May 2, 1994 He was told recently that some documents he wanted
had been destroyed However, there remained certain documents Wh1Ch he needed
to cross-exam1ne the complainant, and Wh1Ch he had not yet rece1ved Ms QU1ck
argued that certa1n documents concern1ng the complainant had the right to be
protected by her right to privacy The vice-chair pointed out that the right
to pr1vacy must be weighed against the grievor's r1ght to a fa1r and proper
defence He ruled that the Employer should make ava11able to Mr Coleman for C
h1S examination all documents relevant to the issues on WhlCh this Board must
dec1de and which are legitimately required for his defence, w1th appropriate
safegurds for the pr1vacy of pat1ents and others, as required It was made
clear this did not permit a wide-ranging flshing expedition The vice-chalr
repeatedly urged counsel to make their best efforts to resolve such problems
as the productlon of documents, as much as posslble, on their own, ln order to
conserve valuable hear1ng time, 1n the best interests of all concerned The
vice-chair said he relied on their good will and cooperation as well their
exper1ence for resolving such eV1dentiary issues The cross-exam1nation was
delayed to permit Mr Coleman to examine certain documents now provided by the
Employer
l_
53
The Cross-examlnatlon of Crui.ckshank
Cruickshank had testIfIed earll~r that whIle on part-tIme status that she
started working full-tIme in nIght-shifts In Admitting In the summer of 1988
When asked, "could It In fact have been In May, 1989?", her reply was "no,
definItely not" She was then shown her performance appraIsal dated November
26, 1989, wh\ch she had signed, and wh\ch stated "She has been work\ng nlghts
in the Assessment/Admitting Department Forty hours per week from May 1989 "
[Exhi bl t 19J She explained "that's when I took over from the nurse workIng
In that position, but I was workIng 40 hours per week in AdmItting before she
left the posItIon"
We fInd that Cruickshank's testimonv on th\s auestion \5 contrad\cted bv her
1988 and 1989 Staff Attendance Records rExhiblts 21 & 221. WhlCh were not
orovided bv the Emoloyer and not received in evidence until after the cross
examinatlon was comoleted Her Attendance Records confirm the evidence in the
performance appraIsal [Exhibit 19J that she started working the 40-hour week
in Adm\tting \n the last week of May, 1989, and not in 1988 as Crulckshank had
testified and insisted In cros~ examination
Cruickshank conflrmed she had told the Investigator the basement Incldent [the
fourth alleaation1 had happened In UnIt 4 Subsequently, after she learned
that Santos's testimony w\ll be that the only time he had escorted her for a
f\le retrieval was to Unit 2, she became uncertain about Un\t 4 She chanced
her testImOny to state the incIdent may have happened in the basement of UnIt
2 She explained that this doubt first came to her mind when the InvestIgator
asked her if she was sure it was Unit 4 She could not say that she told hIm
about her uncertainty "I probably told him it was Unit 4"
Also, in cross examination Cruickshank contradicted herself on how many tImes
she had been to Unit 2 basement with Santos Her evidence in chief was that
she had gone to the basement for files three or four times a year and that
Santos had escorted to the basement on one previous occasion She could not
- - -"- - - .~ - -
54
recall when or where the flle retrlevals had taken place but she was confldent
those two escorts had not been to the same unlt She conflrmed ln cross-
examination that she had been in the tunnels on only three occaSlons, that the
flrst time was wlth Santos, and that she had never been to Unit 2-basement
prIor to the lncident She then contradicted thlS to say she had been to the
basement wIth hIm on a prior occasion Further, she confirmed also that she
could not have gone to Unit 2 with Santos on both occaSlons and then she
chanaed her mlnd, saYIng she now believed Santos had escorted her to the
basement on two occaSlons, and both to the Unit 2 basement She was certaln lt r
was not to Unlts 1 or 3 because different tunnels run to those basements
On furtber questioning, Cruickshank expressed confidence Santos had escorted
her on a prevlous occaSlon to Unlt 2, but she could not remember when or
where It may have been to the flrst floor She conflrmed she did not tell the
Investlaator that Santos had escorted her on more than one occaSlon for a flle
retrleval. She could not recall if she had been escorted by other securIty
offIcers on the other occasions
Cruickshank was told that Santos wlll testify he had never been to Unlt 4
basement with her, and she was asked if she now agrees wIth that She replIed
that she neither agrees nor disagrees wIth him on that, and thpt she could not C
agree because "I am not sure" She protested that she had no need to keep
notes on, or to remember when, where, and with whom, she would have gone to
retrIe~e a file durIng that night, even though It was an infrequent and
unusual event
CruIckshank was confused about the CIrcumstances It was so long ago, she
said, that it was difficult to remember exactly what happened, where or when
Another reason why she could not remember much about her fourth alleaatlon "I
had no intention of reporting it at the time There was no reason for me to
remember If it was In 2 or in 4"
On further questioning Cruickshank recalled tellIng the Investigator about
Santos givIng her a lift to Unit 2, first floor, on a mechanIcal caddy, (
~
>
55
but she could not recall whether that was for a fl1e retrleva1 escort, nor
could she remember when lt happened "I don't remember anythlng more about
that lnCldent I have no reason to remember "
Crulckshank confirmed she was able to continue working through a busy nlght,
wlth a lot of people around, as if nothing had happened, notwlthstandlng her
fear she mlght have been raped durlng the basement lncldent Also, she sald
she dld not report the lncldent to anyone at that time, and that she contlnued
to work full tlme in Admlttlng up to July, 1990 {Exhiblt 12}
Crulckshank sald that other staff persons were present during the flrst
alleaatlon [blouse] but she could not recall who they were or when It had
happened She sald others were not present durlng the second a1leaation, and
she dldn't know untl1 recently that securlty staff do not have the keys to
physlotherapy Now that she knows that neither he nor she had access to the
physiotherapy room, she stlll believes he was serlOUS, not Joking They were
alone during the third al1eaation, she said She agreed "he was ~oking about
not wantlng to marry me, but not about havlng fun" She thought thlS comment
was "stupld" and "sllly" During the flfth alleaation, she said, other staff
were present and close enough to hear hlm say 'you're too tense, relax, you
need to get laid' She dld not feel his remarks were lnsubordlnate, but lt
caused her to ask herself "am I that tense ln my work?"
Regardlng the slxth alleaatlon, she agreed she had inltlated the dlScusslons
about taplng the soccer matches, and that Santos could have been among those
she had asked to tape the world cup soccer She could not recall having a
dlScusslon wlth Santos about taping a particular game, but she recalled she
"slmp1y went around asking several indivldua1s about taplng all of the games,
at thelr homes, not mine" She denled asklng him to come to her place and
watch a game wlth her
Concernlng the lncidents in the bedroom, Cruickshank's rest area ln the
Admitting Department rseventh and elahth al1eaationsl, the cross-examlnation
disclosed some slgnlflcant dlfferences between the Clrcumstances which she
1- .- . ~ - - - _._._--- - -..---- -- --- ----- - - - , -. - - - ---- - - _.--------
I
S6
descrIbed to the Investigator and those glven in her eVIdence In chIef She
conflrmed that she had not told Yetman that Santos had grabbed her or tried to
do so In either of the two bedroom Incidents Her evidence in chief was that
he dld grab her In her seventh allegation and had tried to grab her In her
eiahth alleaatlon. She conflrmed in-cross examlnation what she had sald In
chief, that no rellef nurse was present at the time of elther of the two
IncIdents, and she denied telling Yetman a relIef nurse was there Then, on
further questlonlng, she contradlcted her earller evidence. She admltted she
had told Yetman a relief nurse was there when she found Santos lYlng on the ..-
f
bed rseventh alleaatlonl She then attempted to clarlfy the confuslon by
telllng us about a thud bedroom incldent when she believed a relief nurse
mlght have been present She conflrmed that she had not reported such a thIrd
bedroom Incident to the Investigator nor 1n her eVldence to the Board She
agreed she had told the Investlgator that in one of the Incldents, when she
came to the door it was open, and that when she looked in and told Santos "I'm
not coming in until you leave", he dld She dld not tell the Investlgator that
Santos had grabbed her or trled to do so in that incident Nor did she do so
regarding the other incldent Previously, she told both the Investigator and
the Board about only one incident where Santos was already lY1ng on the bed
when she arrived and she asked hIm to leave and he dld In cross examlnatlon
she said there were two such incidents, and that he had made no attempt to
touch her in either one of them (
She confirmed she told Yetman that there was only one tlme she had found him
lying there, and that it was in the second bedroom incldent, but she had told
us that happened in the first bedroom incident Cruickshank conflnmed also
that she dId not tell the Investlgator that Santos had tried to grab her in
elther of those incidents She agreed that according to the Investlgator's
notes the only incident where Santos was already in the room was the only tlme
she found hlm already lYlng on the bed, but expressed her doubts regarding the
accuracy of those notes The cross-examinatlon establlshed, however, that her
evidence in chief regarding the bedroom Incidents differs signlficantly from
what she told the Investigator
(
'-
~
57
When she was shown the Investlgator's notes and became aware of the
contradlctlons In her statements, Crulckshank appeared vISlbly shaken and
upset She complained she had dlfflculty concentratlng When asked lf she
found the cross examlnatlon to be uncomfortable she replled, "I'm
uncomfortable wlth the whole Investlgatlon, from the beginnlng "
Crulckshank could not recall Robvn Hart's oresence durlna any of her
conversatlons with Santos. She could not remember havlna anv conversatlons
wlth Hart reaardlna Santos. When asked to comment on certain conversatlons
which Hart had described ln her testimony, Crulckshank sald she does not thlnk
Hart was present at the same conversations on which she had reported to us and
that the conversatlons described by Hart may have been dlfferent sltuatlons
"There were so many sltuatlons, It's hard to put them together" When asked
lf she had any reason to doubt Hart's eVldence, she could only say "I can't
remember If Hart was there" She could not recall the conversatlons reported
by Hart, for example, the one about her asking Santos If he had a glrl friend
"At that tIme I already knew he had a girl frlend, so I wouldn't have asked"
Crulckshank could not recall if Hart was present when she gave Santos nnd
other security staff an artlcle in TOPICAL or in OPSEU NEWS to read on sexual
harassment She conflrmed that was the onlv conversatlon she ever had wlth
Santos on sexual harassment. To help her Identify the artlcle Crulckshank was
shown Exhiblt 2 She said it was definitely not the artlcles at Tab 9 and
Tab 17 She sald ttmlght be the artlcle at Tab 16, entitled "THE SEXUAL
HARASSMENT OF WOMEN" in the Newsletter of OPSEU Local 531 dated July 16, 1992
She recalled the slmilarlty of "two pages folded over" [Thls suaaests that
thls event mlaht not have haooened before Santos's susoension.)
In cross examinatlon, Cruickshank contradicted her oreVlOUS evidence, saYlng
she now belteves the ninth alleaatlon happened before she had spoken to Dr
Doumanl about her problems with Santos She sald she had made her best efforts
to tell the Investtgator about all the inctdents, but she could not recall
telltng him about the ninth alleaation She was conftdent, however, that the
second alleaation was not the same as the ninth alleaatlon After revlewlng
,
58
the Investlgator's notes Crulckshank conflrmed that she had not told hlm about
the nlnth alleaatlon
Crulckshank sald there were more conversahons wlth Dr Doumanl about Santos
than the one she described in her evidence in chlef She acknowledged she had
told her only about some of Santos's sexual comments and dld not tell her he
had done anythlng physlcal When told Dr Doumanl had testlfled that she could
remember only one ~uch conversahon, she dlsagreed, saYlng they talked every
~
Saturday night when they worked the same Shlfts The first conversation r '
, "
started one night, while she was sittlng in Admitting wlth Santos, when
Doumamarn ved and Santos left She sald she told Doumanl about the lncldent
where she went to the room for a rest and he was already there "I dldn't go
lnto detalls wlth her" Cruickshank sald that on a separate occaSlon she told
Doumanl about Santos saYlng he wanted to marry her, that he's getting
desperate She could not remember lf Santos'was on Shlft that night "It
wasn't a busy night and he wouldn't be cOlmng around I can't remember seelng
hlm that mght "
Questloned on the tenth alleaation, Crulckshank could not recall the
dlScusslon she had with Santos before he "grabbed me from be~lnd" She could
not recall any Joking banter between them before the incldent She demed that
ln the course of joklng wlth hlm she had sald "you're all talk" When asked ('
lf ln the course of Joklng she told him that lf she came after hlm he would
run away, her reply was "I don't joke llke that He knows that " She demed
also that he had asked "are you sure I'm all talk?" "That's a lle, it's
false" On further questlonlng, Crulckshank explained that whlle she was
pulling away he released her and she stumbled 2 or 3 times, no more, she was
on her feet but unsteady, and she did not see Dr Loganuntll she was off the
floor rlslng to a standing position Asked if she thought he had seen the
whole incident, she answered that he told her later that he had not seen
anything, and "I didn't have tlme to thlnk what Dr Logan was thlnking"
Crulckshank agreed it was an embarrassing situation to have been seen by Dr
Logan ln that sltuatlon, that it would be unprofessional for anyone to be seen {
,
'-
.
59
on the floor "But," she sOld, "that was the least of my concerns at the tlme,
havtng felt stressed from betng grabbed from behtnd and falltng down"
Crutckshank conftrmed that she understood Santos thought she had complalned to
the doctor, that he was surpnsed by tt, and wanted to know why she went to
hlm She agreed her response to Santos was, "I'm not sure what I'm dOlng", or
"words to that effect" She agreed that she descrlbed herself as quiet, mlxed
up and confused, at the time, and also "shaken up" by the events
Counsel asked Crutckshank to demonstrate at the door how Santos grabbed and
held her Ms Quick volunteered to play the role of the vtcttm, standlng wlth
her back to Crutckshank, her hand on the door knob, whl1e Crulckshank, ln the
role of Santos, with her rlght shoulder pressed against the door, placed her
hands on Ms Quick's walst Her hands later moved to Ms QUlck's chest In
response to Mr O'Toole's questlon .Crulckshank conftrmed that her hands
touched Ms Quick's breasts The demonstratton happened so qUlckly that we dld
not see clearly how or when her hands had moved to the breasts We each have
dlfferent views of the demonstration, but lt appears to the chalr that the
hands touched the breasts lnadvertently In the struggle to get away
{Seymour's view of the demonstration is that Santos's arms were around her waist, with his hands
touching her shoulders, and DQ!.her breasts. O'Toole may have a different view which he has not
specified, and which may be revealed in his dissent.}
The demonstratlon dlffered slgnlficantly from what the wltness descrlbed ln
examtnation, when, in her unasslsted description of the lncident, she had sald
nothlng about Santos touching or trying to fondle her breasts She said
nothlng about htm touchlng her breasts In that respect, the demonstratlon
was not consistent wlth her prior description of the event
When Cruickshank was asked about dlfferences between her eVldence and her
statement to the Investigator regarding the July 19th incldent she explalned
"there's lots about that night I don't remember" "Whether or not I was stlll
on the floor when I flrst saw Dr Logan come in could be one of the details I
do not remember" She confirmed she dld not tell the Investigator what she had
told us about Santos saying 'he dld it to Debbie all the time', but said
Santos is wrong in denying he had said it to her
~
.
60
Crulckshank lnslsted, however, that what she had told Yetman was no dlfferent
than what she had told us, regarding the events WhlCh followed Dr Logan's
appearance She told us that Yetman's notes are not rellable
Cruickshank conftrmed she had decided to no longer work in Admttting in the
summer of 1993, followlng a disagreement she experienced with Dr Harn son, 1 n
WhlCh she refused to accept his order to put a pat lent tn mechantcal
restralnts, in Clrcumstances where she belleved lt to be professlonally
inappropriate Ms Quick obJected to thlS evtdence on grounds of tts -
questloned relevance It was admitted on the Unton's submtsslon that the f
eVldence is relevant to the assessment of the complalnant's character, on her
capabllity to comnuntcate to the gnevor her Judgments on the appropriateness
of hlS behaviour, as well as to the question of the delay in the complalnt
*****************************
At one point, Mr Seymour interrupted the cross-examtnatton to. express hlS
concerns that Ms Quick and her advtser, through much of the day, had been
prompting the wltness when she was glving evidence, in the form of sending her
faclal body messages, such as approving nods and smiles
****************************
Crulckshank's Re...;.examination
In her re-examtnatlon Cruickshank confirmed again that she had no recollectton (
of any dtscussion wlth Hart on the subJect of sexual harassment When
questioned regardlng her dlspute wlth Dr Harrison, she sald that he started
to work at QSMHC towards the end of the tnvesttgation of her complaint and he
soon became "buddy buddy" wlth the security officers, tncluding Santos She
said she had seen him in conversattons with them She believed tharthey
sociallzed both on and off duty When asked why she decided to work elsewhere,
she said tt was because she felt that Dr Harrison had became resentful and
hostile toward her "once he got to know the ropes", and he no longer treated
her in the appropriate professional manner
At the close, Crulckshank told us she would not advise anyone "to go through
thlS again, this is a matter of survlval, not a matter of truth"
l_
~-
61
The EVl dence of Dr. El a 1 ne F. M. BOrlnS
Dr Bor1ns, ass1stant cl1n1cal professor of psych1atry, Un1verStty of Toronto,
and stnce 1979, sent or staff psychiatrist and dtrector of "The Women's CltnIc"
at the Toronto Hosp1tal, test1f1ed as an expert witness on May 17, 1994
Dr Bor1ns completed her res1dency tra1ning in psychlatry at the Universtty of
Toronto 1n 1977 In her subsequent prtvate practice, hosp1tal appo1ntments,
consult1ng, educattonal and research act1v1t1es, she speCtal1zed 1n women's
health 1ssues, focus1ng on the dtagnosls and treatment of women who have
experienced traumatic events, such as sexual abuse and sexual harassment She
commenced a research study 1n 1993 on the health consequences of traumattc
expertences 1n the workplace Dr Bor1ns rev1ewed and conf1rmed her
currIculum vitae [Exhibit 18J establ1sh1ng her credenttals as an expert
wttness Unton counsel accepted her qualifications as an expert wltness for
the purpose of these proceedtngs
It must be noted that the expert evidence of Dr Borins 1S based upon her
psychlatrtC knowledge of the professtonal 11terature, and her research and
cllnical exper1ence, ch1efly her expert knowledge on the d1agnOsts and
treatment of women who suffer traumat1c sexual experiences She clalms no
partIcular knowledge of Cruickshank or Santos, and she 1S hot an expert
wltness 1n assesstng their credibility, the truth or accuracy of thetr
recollect1ons of events
The w1tness's expert psych1atr1c knowledge about perpetrators and v1ct1ms
generally is not directly relevant to the determ1nat1on of our parttcular
questions of cred1bility in fact-f1nding, whether the compla1nant is in fact a
vlct1m and whether the grievor is in fact the perpetrator The psych1atrist's
central duty is to cure, treat, and heal the v1ctims, not to judge the truth
of their claims The witness informs us that the healing process may be hurt
rather than helped by efforts to Judge the patient's claims, and that the
theraptst's support and trust in the victims of sexual harassment are
essential to the therapeutic process It is not a central profess1onal concern
for a psychiatrist to determine whether an alleged vict1m's accusattons are
_.
62
true or false, as 1t 1S for an arbitrator who must Judge the truthfulness of
the accusatIons by putt1ng them to the tests of proof For a Judge or
arbItrator, unlIke a psychIatrIst, the accuser IS not a VIctIm and the accused
1S not a perpetrator, not untIl they are proven to be The psychiatrIC
eVIdence WhICh we heard is about victIms and perpetrators of sexual harassment
generally, but whether CrUIckshank IS a VIctIm and Santos a perpetrator rematn
to be proven
Dr Borins testtfted there IS very little SCIentIfic knowledge avatlable on r
,
the subJect of sexual harassment which has attracted attentton by a few recent
widely publIcized cases, such as the July, 1991, Time magazine article
on an Intervtew w1th Dr Frances Conley, and by the televtsed test1mony of
Anita HIll at the US Senate hearIngs In October, 1991 She referred us to a
reV1ew artIcle {on published research and review papers from psychIatry and
psychology journals}, tn the January, 1994, Issue of the knerIcan Journal of
PsychIatry, entttled "An Overview of Sexual Harassment" [ExhibIt 20J
The article reviews the topic "WIth particular attention to demographIC
InformatIon, psychosocial consequences, appropriate therapeutic Interventions,
and related psychologIcal issues" Those Issues are not directly related to
the credIbIlIty Issues which we must deCIde
r
(
Dr BorIns acknowledged the Journal article lacks analytical depth The
artIcle Itself observes that many of the studIes It reviews are defICIent tn
scientIfic methods and relIable data Nevertheless, It is a very Interesting
and helpful article, enhancIna our awareness and understandIna of harassina
behaviour. of the osvcholoaical differences in oerceotions of sexual
harassment. oarticularlv the differences in oerceot\on between aenders. and
between VIctim and oeroetrator Dr Borins commented on many of the issues In
the artIcle which descrIbes sexual harassment as
"distinct from flirtation, flattery, requests for a date, and other acceptable
behaviour occurring in the workplace or the classroom, it lacks the elements
of choice and mutuality inherent in a normal relationship Even if the
victim is a woman and the perpetrator a man, harassment may be motivated by
other issues, such as race, religion, and politics In addition, sexual
harassment is distinct from rape It is a type of sexual coercion that relies
~
-
I ·
63
on the power of the perpetrator to affect the victim's economic or academic
status and does not necessarily involve physical force >>
The artlcle notes that several authors have attempted to construct a hIerarchy
of posslble behavlours, ratlng them mtld, moderate or severe
"Remarks of a sexual nature, repeated requests for a date, whi.stles, and
staring can be mild forms of harassment Sexual propositions not di rectly
1 inked to employment and unwanted physical contact of a nonsexual nature are
rated intermediate in the hierarchy Last, sexual propositions linked to a job
enhancement or a job threat, unwanted physical contact of a sexual nature, and
sexual assault constitute the most severe forms >>
The artlcle notes also that perceptlons of sexual harassment vary qreatly
"Perceptions are socially constructed, differing not only according to the
characteristics of the perceiver but also according to those of the context
and the participants involved The question we address in this section i. s,
What determines whether an action is seen as offensive? Several studies
required subjects to evaluate hypothetical scenari.os i.nvolvi.ng workplace or
classroom interacti. ons The resul ts revealed that si. tuati.onal factors are the
most influential i.n determining the way a behaviour is perceived Among
situational considerations, the severity of the conduct is the single most
important variable Another major factor is the di fference in power between
the perpetrator and the victim >> {EMPHASIS IS OURS}
"Indi. vidual characteristics of the percei ver al so predi ct whether an achon is
seen as offensive The individual variable that seems to have the greatest
influence on perception is gender Both sexes agree that quid pro quo
si tuations, unwanted physical contact, and behaviqr perpetrated by a person
wi th di rect authority over the victini constitute sexual harassment However,
there is disagreement about behavior that is less severe and the behavior of a
person without direct authority>>
The article flnds that two of the gender dlfference studles "deserve
particular attentlon", as "thoughtful evaluatlons of the percepttons of the
unlverslty students, faculty and staff although they are Ilmlted by
response rates of 57% and 31%, respectively" It finds also that a third
study 1S "0 notable exception with respect to gender, S1nce these, authors
found no slanlflcant d1fference 1n men's and women's oerceot10ns of sexual
harassment " {EMPHASIS IS OURS}
On the incidence of sexual harassment, the article finds "the most reliable
data come from a cgrefully designed, random-sample survey of 24,000 US
government employees in 1981, and updated in 1988" whtch found "among the more
than 20,000 respondents to th1s survey by the U S Merit Systems Protecti.on
-.-- -- - - --,- - _.- - - - - -- -- ..- ---
- '--"
, .
64
Board, 42% of the women and 15% of the men reported having been the target of
sexual harassment 1n the pr~ced1ng 24 months" "Despite the h1gh
prevalence rates c1ted, the frequency of assertive responses, such as
fU 1ng a formal complaint or seeking legal help, 1S very low as few as 11%
of the v1ctims reported the harassment to a higher authority, and only 2 5% of
the v1ctims ever inItIated an official gr1evance procedure"
Whv do most vIctIms never fIle a comolalnt? And why is It not unusual for
women to delavreoorttna sexual harassment? Dr Borins commented on the f~
possible explanat10ns suggested in the article, and presented some of her own
theortes The art1cle states that Prof Anita Hill {for her 10 year silence}
and Dr Frances Conley {for her quarter century sIlence} gave slmilar reasons
"both were unw1lling to risk forsak1ng years of education and rigorous
traInIng and JeopardizIng theIr hard-earned success They were uncertaIn that
reporting harassment could help them in any way and were concerned that 1t
could hinder their progress"
The article also offers some gender-based theories to explain the reluctance
of women to use official grievance procedures, suggesting that "women and men
have different approache~ to resolutIon of disputes", "this may mean that
female victims just want the behaviour to stop They may not wish to judge or
punish the offender and may avoid formal processes as a result" Other lIkely (-'
gender-based explanations offered by the article "the socialIzatIon of a
woman to put the needs of others above her own", "many women experience
conslderable pSYCh1C conflict about anger", and "a female victim may opt to
preserve some form of relationship with a harassing colleague rather than to
resort to legal measures" The article observes "It is important to note
that little is known about the reporting patterns of male victims"
Dr Borins testified that generally, in her experience, the reasons given by a
v1ctim for coming forward wIth a complaint of harassment or abuse is "much
more related to a deep-seated sense of morality and integrity, a very strIking
concern for other people TheIr motivations are very altruistic Reta 1 i. ati. on,
revenge, primit1ve motivations are usually not there" She explained also that l~
65
peer group pressures could 1nh1b1t v1ctims from report1ng harassment, where
the v1ctIm be11eves her compla1nt w111 not be supported or valIdated by her
co-workers, and th1s may expla1n the low level of compla1nts Dr Bonns
expla1ned also that the traumat1c or shock effects often assoc1ated w1th
exper1ences 11ke rape, assault, or 1ncest could be another probable or
theoret1cal explanat10n for delays in reporting the event, and also for a
v1ctIm's 1nab111ty to recollect the events accurately She acknowledged,
however, that delays in report1ng sexual harassment may be cons1stent also
w1th the absence of a traumatIc experience, and that many factors other than a
traumat1c experience could affect the accuracy of a witness's recollect10n of
events [In cross examInat10n Dr Bonns agreed that delays In report1ng may
be cons1stent also w1th an 1nvalId compla1nt as well as w1th a valId one]
Dr Bor1ns testIf1ed she has some anecdotal fam1l1ar1ty w1th falSIfied
compla1nts, but she 1S not aware of any reported studIes or reported cases of
false complaints She was aware of a case where a woman committed sU1cide
after police and lawyers threatened to charge her with m1sch1ef, when
SUsp1CIon of a false rape complaint arose from inconsIstencIes in her
evidence Dr Borins acknowledged that she is unable to help us determIne
whether a complaInt is false, or whether it 1S motivated by base emotions such
as revenge or retalIatIon False complaints, llke false den1als, may be
associated with a personalIty d1sorder, but not necessarIly so
The psychIatr1st's concerns focus on d1agnosis and treatment, not on whether a
victim's complaints of rape, assault, abuse or harassment, are true or false
For the purposes of therapy, the ,psych1atrist assUmes the events occurred as
reported, at least until it is learned from the v1ctIm whether somethIng else
1S going on, such as physical health, wh1ch may affect her well-be1ng
In cross-examination Dr Borins acknowledged there is no consIstent or
reliable theory to expla1n or account for why victims may delay mak1ng reports
of sexual harassment or abuse She acknowledged the delays are dIffIcult to
comprehend and they may be consistent with either a valid complaint or an
i.nvalId complai.nt, and that the delay may underm1ne the credibilIty of the
- ~ ~ ~
I
66
compla1nt Also, she acknowledged that "a compla1nant's return to work, as 1f
nothing happened, could becons1stent with no event hav1.ng actually occurred"
In cross-exam1nation Dr Bor1ns acknowledged that it is not unusual for a
complalnant to be dlscouraged by peer group responses WhlCh generally fall to
support her, parttcularly where others in the group who have exper1enced the
same conduct do not flnd lt to ~e sexual harassment Where peer group support
1S absent, the v1ctlm 1S d1scouraged from maktng her complalnts known, and she
Bonns be lleves ,#."'-.
may take her concerns underground or deny them However, Dr { ,
that in some cases there might be a threaten1ng element 1n the den1al, a fear
of bemg ostraclzed for rejecting the group's Judgment, or a fear of belng
regarded as an odd ball What may be a sexual joke or banter to the rest of
the group may be sexual harassment to one person One woman mlght feel
tnttm1dated or offended by what causes others to laugh, yet she m1ght sttll
laugh at the boss's Jokes, lf she fears for her Job, or lf she fears belng
left out of the group
Dr Bor1ns observed that, even where the boss 1S not involved, the sexual
]Oklng among co-workers may border on harassment The defense of such
hara~sers, she testif1ed, is often that they and others have always done the
same th1ng w1thout any problems She believes that soc1al att1tudes towards
such unacceptable conduct is changing rapidly, as evidenced by the changed <-
att1 tudes towards the smoktng and dnnktng Wh1Ch we used to see d1splayed 1n
the :lId mOV1es She bel1eves that pro-active steps by employers are needed 1n
the Norkplaces to expla1n what is acceptable behaviour and what is not
acceJtable, what are the differences between jok1ng and harassment
*********************
THE MOTIONS FOR NON-SUIT AND FOR RE-OPENING
As noted above, Employer's Counsel did not ind1cate the 1ntent1on to produce
the letter of dism1ssal into eV1dence, or to caU on the eV1dence of the
manager who had made the decision to dismiss Santos, at any t1me in the course
of presentlng the Employer's' case (
"-
..
67
Not unt1l after she had closed her case d1d Ms QU1ck ask for Mr Coleman's
consent to f1le as eV1dence management's letter of d1sm1ssal When we
completed hear1ng the eV1dence of Dr Bor1ns on May 17th, Ms QU1ck announced
she has no more wltnesses and that her case lS closed It was understood Mr
Coleman would present his f1rst witness, the grievor, the next morning When
we reconvened May 18th, Mr Coleman complained he st111 had not rece1ved
certa1n documents from the Employer which he had requested previously and
Wh1Ch he requ1red for h1S defense On many preV10US occaS1ons the V1ce- cha1r
had urged counsel to make every reasonable effort to resolve the1r d1fferences
on 1ssues such as the production of documents in order to conserve valuable
hea rt ng t 1me They frequently succeeded 1n d01ng so, but on th1S occaS1on the
panel had to resolve the 1ssue
After hearing the representat10ns of counsel we dec1ded that the attendance
records of the complatnant and the gr1evor for the years 1990 and 1991 are
part of the defense and adm1ss1ble These records could be rece1ved as
documentary eV1dence on consent of counsel, or, 1n the alternat1ve, Mr
Coleman could call for the 1ssue of a personal subpoena duces tecum, requ1rtng
the appropr1ate management witness to produce the records The records were
produced voluntartly and entered as Exh1b1tS 23, 24, 25, and 26
In the course of reCetV1ng explanat10ns of certain notat1ons on Santos's 1991
\ attendance record [Exh1bit 26J regarding his absence for a suspenS1on, the
vice-cha1r noted that a suspenS10n letter was not among the exh1b1ts filed
w1th the panel In the d1Scuss1on Wh1Ch foUowed, 1t became apparent also that
a d1smissal letter was not in eV1dence Ms Quick promptly offered to produce
the letter 1f we requ1red 1t We rem1nded her once agaln of our repeated
aff1rmations of her respons1b1lity for the conduct of the Employer's case, and
we 1nformed her that because she had closed her case, the adm1ssion of the
d1smissal letter into eV1dence now requires the consent of Un10n Counsel
Mr Coleman promptly refused her request for consent
The gr1evor had waited about two hours that morn1ng to be called as the f1rst
witness 1n his defence, when Mr Coleman requested a mid-day recess to consult
him Mr Coleman soon returned to the hearing room after th1S consultat1on
-- -
~'~
, ~
.
I
I 68
I
and promptly presented a mot1on of non-suit, wtthout be1ng put to
an elect1onon the questtonof evidence, in the event th~ mot1on tS not
successful, relY1ng on the Faler case (GSB 218/89){see below} He followed
this with a motion, whtch we accepted, to adjourn until the next morntng, to
allow counsel to prepare for the presentation of their respective arguments on \ I
the non-sutt motton At no time prlor to the adJournment for the day, on May
18th, dld Ms Quick suggest that" she would ask us for the r1ght to re-open the
hearing for the Employer's case
C
However, when we convened on May 19th Ms Quick presented a motion to re-open
the case in order to perm1t her to produce the manager's evidence [the
d1smissal letterJ to state the cause for dlsmissal The two motlons were heard
and dectded together Both mot tons were dism1ssed In order to avoid gtV1ng a
tactical advantage to either side, it was agreed in advance that 1n the event
the motions are dtSm1ssed the Board would give no oral or wrltten reasons
unttl such time as the hearlngs are completed and lt lssues its award on the
merlts
The Unlon took the position that it should not be put to its electton to call
evidence, but rather the Board should hear the motton and if the Union does
not succeed, then it should be free to call evidence if it so chooses We (
accepted Mr Coleman's proposal that we adopt the reasoning and procedures
followed by Vice-chairperson Barry R Fisher in OPSEU (Faler) & Min1strv of
Correctional Servtces (218/891 We exercised our discretion to allow the
Union to proceed "with tts motion for non-suit without the requirement of
having to elect as to whether or not to call evidence, on the understanding
that if the Board dismtsses the-matton, it shall do so wtthout wrttten or oral
reasons Based on the circumstances of this particular grievance arbitration
we were persuaded that the possible advantage of savtngs in hear1ng days, with
an expedttious oral ruling, was not overridden by procedural unfairness
The non-sutt motion, to dtsmiss the Employer's case and allow the grievance,
in Its essence, is grounded in the Union's claim that "the Employer failed to
provide any evidence on the crittcal issue of its decision to dismiss the l
..
69
grtevor" The Umon subm1ts that we know that Santos was dlsm1ssed, but we do
not have any evtdence on why he was dtsmtssed, that there tS no evtdence on
the cause for dlsm1ssal, on whether the deciston was based on sufftctent or
Just cause, and that there tS no evtdence to ltnk the eV1dence we heard on the
1nvestlaat1on of the alleaati?ns to the dismissal action The Unton argues
that we do not know tf the Employer accepted or reJected the allegattons made
_agatnst Santos because no evtdence was presented on thts cr1t1cal questton It
subm1ts that we can only speculate on why Santos was dtsmissed because a v1tal
element of the Employer's case has been omttted, and we have no evtdence to
inform us on thts important question
We agree that we do not have the very best or the most dtrect evtdence on the
cause for d1smlssal, such that the decision-maker could have provlded There
are many roads to Rome, and the Employer obvtously chose a much less dtrect
route The Employer's eV1dence on thts tssue 1S less dtrect and more
Ct rcumstanttal A causal connection between the dtsmtssal and allegations of
sexual harassment was established through clrcumvolution, a roundabout course
or procedure Whtle a causal connection was established on prIma faCIe
evtdence, tt remalns to be determtned whether sexual harassment can be proven
on clear and convtnctng evtdence and whether the cause for dtSm1ssal tS Just
or reasonable tn all the ctrcumstances of thts case
We accept Ms Quick's submisston that all the evidence we heard from the
Employer's wttnesses, looked at In lts enttrety, establtshes that the
dismtssal was causally connected to the Employer's acceptance of the
complatnant's allegattons of sexual harassment, and that this followed a
prolonged official investigation Ms Albrecht, a senior manager, test1fied
that Santos was suspended pendlng an investigation of the sexual harassment
charges and that he was re-tnstated before his dtsmissal Her evtdence
tndicated that the dismtssal followed the investigati:on of the allegattons
Mr Yetman, who was appointed to investigate Ms Crutckshank's allegations of
sexual harassment, testifted he dtd so over a period of about 10 weeks, endtng
some ttme 1n February, and that Santos was d1sm1ssed followlng the completlon
of hts investigatton Ms Cruickshank testtfied she was informed of the
t
70
results by mall ln Aprtl, 1992 ~I understand that the result was that Santos
lost his Job" Other wltnesses also knew that Cruickshank's allegattons
resulted In Santos's dismlssal
We cannot accept the Union's clalm that there tS no evtdence on the vltal
i.ssue of the cause for dtsmtssal, that there tS no evtdence to ltnk the
d1smissal actlon to the eVldence we heard on the lnvestigatton of the sexual
harQssment allegattons We ftnd that the Employer produced the necessary and
suff1C1ent evtdence to establish a prima facze case that the Employer's cause f
for dtsmtsstng Santos tS sexual harassment There is no evidence, however,
that the Employer had acted on any dlfferent or addlt10nal cause than sexual
harassment Nor does this findtng tmply tn any way that the cause on Wh1Ch the
Employer had acted was or was not a just or reasonable cause for dlSmtssal
For the reasons stated herein the motl.on for non sui.t l.S denl.ed
The prlmary purpose of Ms Quick's motion to re-open lS to pre-empt the non-
SUt t motton Our understandlng is that the motion was intended to provide the
Employer with another opportunity to provide us with the alleged "mlssing
ltnk" of the causal connectton, either by way of the letter of dtsmtssal or by
the evtdence of the dectston-maker Ms Quick assured us that the proposed re-
openlng was not for the purpose of presenting new or addttional evtdence on ('
whether the causes or the reasons for the dismissal are correct or constttute ".
Just cause She described her motion to re-open as "procedural and not
substantIve" {It should be noted that Mr O'Toole has a dtfferent vtew of
thlS, tn that he believes that the purpose of the motton was not restrlcted to
the questton of the causal link, but was tntended to permit the Employer to
tntroduce additional evidence in support of its claim of Just cause}
oMs Qutck asked the Board to exercise its dtscretton to permit a case to be
re-opened when a piece of evidence i.s inadvertently or unintenttonally left
out She clalmed that her failure to produce the Employer's reasons by way of
the dlsmlssal letter was inadvertent on her part, that it flowed from
discussions before the Board on the Investigator's report, WhlCh she had
orlglnally intended to introduce in evi.dence She attr1buted the inadvertence (
...~
I
w r;-.
71
to her understandlng that the Board preferred the dtrect eVldence of the
complatnant and other wttnesses, over the Investtgator's hearsay evtdence
Ms QUlck cla1ms that as a consequence of her understand1ng that the Board
wtshed her to proceed to the substanttve evidence as qutckly as posstble, she
tnadvertently omltted addresslrig the issue of the dlSmtssal letter She
submits thts was not a deltberate omtsston
It should be noted that the Board dtd not, at any ttme, refuse to recelve
hearsay evtdence such as the Report of the Investlgator, subJect, however, to
the subsequent determlnation of questions of legttlmacy, relevance and we1ght
We did, however, frequently caut10n counsel regard1ng the qualtty of hearsay
eVldence tn relat10n the requtrements for the standard of proof normally
appllcable to dtsmissal cases such as thlS The Board lndlcated lts preference
for the dtrect eV1dence of the witnesses, as the best evtdence, over the
hearsay evtdence of what the Investigator mtght report
Ms Quick relies on the follow1ng authorit1es
[a] Roblllard vs. The Oueen [41 CCC (2d), pp 1-6--Supreme Court of
Canada, Laskin,CJC, Martland,Ritchie,Spence,Pigeon,Dickson,Beetz,
Estey and Pratt ,JJ--May 1, 1978]
[b] Her Maiestv the Oueen vs. M.B.P. [Supreme Court of Canada,
unpubli shed, appeal heard November 12,1993,Judgment rendered
Apr 14,1994, Reasons for Judgment by The Rt Hon Antonio Lamer, PC].
The headnotes to Robll1ard vs. The Oueen state
"A trial Judge has the discretion to permit the Crown to reopen its case,
which discretion should not be interfered with unless an injusti ce has
resulted Further, this discretion is not subject to the strict limitation of
matters which arise ex improviso "which no human ingenui.ty could have
foreseen" In this case there were no grounds for interfering with the trial
Judges's discreti..on,,,pe.rmitting the Crown to correct an omission due to an
inadvertence "
Her Malesty the Queen vs. M. B. P. clari ftes "The Prtnctples Govermng
Reopentng" as follows
"The keystone principle in determining whether the Crown should be allowed to
reopen its case has always been whether the accused will suffer prejudi ce in
the legal sense-- that is, will be prejudiced in his or her defence A trial
judge's exercise of discretion to permit the Crown's case to be reopened must
be exercised judicially and should be based on ensuring that the i.nterests of
justice are served
~
~~---~~~--~
....,"~,..
. -
72
---
"Tradi tionally, courts in Canada and in England have treated the stage reached
in a proceeding as correlative to prejudice and injustice to the accused That
is, a court's discretion with respect to reopening will be exercised less
readi ly as the trial proceeds The point is illustrated by taking the
following three stages in a trial
(1) before the Crown closes its case,
(2) immediately after the Crown closes its case but before the defence
elects whether or not to call evidence (most commonly, this is where
the defence has moved for a directed verdict of acquittal for failure
by the Crown to prove some essential ingredient in its case), and
(3) after the defence has started to answer the case against it by
disclosing whether or not it will be calling evidence
"In the first phase, before the Crown has closed its case, a trial judge has (~
considerable latitude in exercising his or her discretion to allow the Crown
to recall a witness so that his or her earlier testimony could be corrected
Any prejudice to the accused can generally be cured at this early stage by an
adjournment, cross-examination of the recalled witness and other Crown
witnesses and/or a review by the trial judge of the record in order to
determine whether certain portions should be struck
"Once the Crown actually closes its case and the second phase in its
proceeding is reached, the trial judge's di scretion to allow a reopeni ng wi 11
narrow and the corresponding burden on the Crown to satisfy the court that
there are no unfair consequences will heighten The test to be applied by the
trial judge is generally understood to be that reopening is to be permitted to
correct some oversight or inadvertent omission by the -Crown in the
presentation of its case, provided of course that justice requires it and
there wi 11 be no prejudice to the defence
"Lastly, in the third phase after the Crown has closed its case and the
defence has started to answer the case against it (or, as in much of the case
law, the defence has actually tlosed its case), a court's ~iscretion is very
restricted and is far less likely to be exercised in favour of the Crown It
wi 11 only be in the narrowest of circumstances that the Crown would be (,
permitted to reopen its case Tradi tionally, an ex improviso limitation was
said to apply to t~is stage of the proceeding, that is, the Crown was only
allowed to reopen if some matter arose which no human ingenui ty could have
fo re see n At this stage, the question of what 'justice' requi res wi 11 be
directed much more to protecting the interests of the accused ~han serving the
often wider societal interests represented by the Crown, the latter bei.ng a
more pressing consi.derdtipn at the first and, to a lesser extent, the second
phase "
We are not convinced that the failure to produce the evidence of the
dec1sion-maker or the dismissal letter was unintentional Ms Quick is an
experienced counsel who had full control over the presentation of the
Employer's case, tncludtng the selection of the witnesses and the order of
thetr presentations to the hearings The panel's concerns on such matters had
been brought to her attention on several occaSlons in the course of the
presentation of the Employer's case t
'--
)
~
73
In our judgment the reopenlng tS not requlred by unforeseeable or exceptlonal
Ctrcumstances The Employer did net demonstrate that tt had clearly 1ntended
to produce the addttlonal evidence at an earlier stage tn the proceedlngs, or
that the evidence could not have been produced earlier in the proceedings by
reasonable dlligence To permtt the Employer to reopen at thlS advanced stage
in the proceedtng, after tt had closed its case and after the Unlon Counsel
had started to meet the case against the grlevor with a motlon of non-suit,
would be an tn)usttce to the grtevor and preJudictal to hts defence
For the reasons stated heretn, the motion to reopen lS denied
THE UNION'S WITNESS
No wltnesses other than the grlevor testtfied in hts defence
The EVIdence of Graciano Santos
The dtrect examinatton of Graciano Santos commenced the afternoon of May 30,
1994 and conttnued through the next day H1S cross examtnatlon began July 21
and cont1nued July 26, September 16 and 26, 1994 Santos test1fled he is now
3S years of age After graduating from grade 12 high school in 1979 he worked
at Canada Packers He played semt-professtonal soccer from 1979 to 1983 when a
! knee lnjury ended that career Starttng in January, 1981, he worked for a
prtvate company as a security off1cer at the QSMHC until May, 1981, when he
became a government employee He continued worktng as a secur1ty offlcer
there, w1thout tnterrupt1on, until hlS dtsmtssal He never recetved formal
tratning for the Job In 1989 he was permitted to take a course at the QSMHC
intended for nurses, on how to deal with hostile or aggresstve patient
behaviour Also, at one time, he received traintng in the use of handcuffs
Santos's performance appraisals for hlS flrst nine months of employment were
"far above average", noting that he is "very cooperative wtth all staff,
peers, patients as well as the publtc", "uttltzes good Judgment at all t1mes",
"requires very llttle supervision and can be depended upon ln all 1nc1dents",
"handles all Sttuatlons well, this includes both dtfftcult and relatively
.
74
routtne sltuatlons", and "remalns courteous and helpful to all persons at the
Centre" [Exh1bit 29J Santos's most recent performance appratsal, for the
year 1990, was signed by Robert Frost, the Securtty Department Manager, and
dated January 30, 1991 Santos sald that Robert Frost had been in h1S poslttOn
for only about two weeks when he prepared h1S 1990 appratsal It rated hlS
knowledge and performance of Job functlons at above average, nottng that he
"demonstrates above average Judgment", that his 'work is generally thorough,
neat, and accurate", and that he "malntatnS required standards wtth general
supervislon" The appraisal notes that h1S reports are short and "lacktng ~
f ~
, ~.
deta1l" [Exhtbtt 30J
Santos test1fted that h1S dtsctpltnary record was clear unttl October, 1991,
when he was suspended pendtng the tnVestlgatlon of Crulckshank's complatnt
In the three-years prtor to hts dlSmtssal tn March, 1992, the pertod matertal
to the complalnt, accordlng to Santos's recollectlons, the Security Department
at QSMHC had 10 full-ttme and 3 part-t1me guards, 2 superVtsors and a manager
The Security Office is located on the flrst floor, near the Admttting
Department The Security Manager's offtce is somewhat removed, on the second
floor of the same bUlldtng
Santos testtfied that he and the other security offtcers worked 12-hour ('"
\'"
Sh1fts, 7 to 7, tn a cycle of 4 day shifts followed by 4 days off and then 4
night shtfts, thts cycle was repeated, with an etght-hour Shlft worked every
sixth week Santos's regular partner was Steve Kerr They were regularly
scheduled to work the same shtfts together Santos also normally worked hIS
last day shift and ftrst ntght ~hlft, in each cycle, w1th Brent Welsch,
another off1cer, and hts ftrst day Sh1ft and last ntght shift, wtth Helen
Gerardi, a supervisor "They are the people I worked with It didn't change
much" Shtft schedules were posted monthly on the bulletin board in the
SeCUrl ty Office Part-time offtcers would be employed to replace full-time
offlcers on slck leave or vacation
j.
~_.
0
75
Santos testtfled that the POSltlon Specif1cation for hls Job as Securlty
Offtcer at QSMHC [Exhtbtt 4J "pretty much covers tt" One of the dutles it
describes is "stand1ng by tn Admitt1ng on all Form 1 (lnvoluntary) patlents
and as necessary at request of Admitttng staff when dtfftculttes are
anticlpated when dealtng wlth clients" Santos explained that usually one
security offtcer tS present tn Admitttng for pattents who mtght become
vlolent "Another would be called if needed Sometimes two mlght come,
dependtng on how busy Admitting is at the ttme "
Security offlcers are requlred to prepare special Sttuat10n reports for
occurrences Wh1Ch are out of the ordinary, Itke ftres, thefts, or break-1ns,
as well as a datly activtty report The practtce qt the materlal tlmes was to
leave the completed reports in a tray in the Security Offtce, where they were
picked up by a superVtsor who took them upstairs to the manager's offlce
There they were ftled after the supervisor used them to prepare the monthly
statistical reports
Santos testified the supervisors (but not the officers) had keys to the
manager's offlce Officers have the keys to the regular doors, but not to
pat1ent records, personnel department, or any of the sensttlve areas Certain
keys are kept ln the Security Offtce and are asslgned when required for access
: to destgnated areas Keys to clintcal record rooms are not kept tn the
Securtty Offtce but must be obtatned through the Nurstng Department or the
Adm1tt1ng Department He did not have the key to the record rooms ln elther
the Unit 4 or Unit 2 basement The clerk or nurse whom he. escorted would carry
the keys to the rooms where the cltnical records are kept Santos would not
have the keys Usually, he would escort either the nurse coordtnator or the
clerk who normally would retrleve a file Less often tt would be a nurse They
would get the the keys before he escorted them
Sqntos testtfied that the fl1es for acttve patlents are kept on the wards
where the pat tent resides The clintcal records for pattents tn the three day
care programs are filed where the the program is located, either ln Unlt 1-
basement, Un1t 2-basement, or Untt 4-first floor The hlstortcal records for
-- - -- - ~-- - - -- --~~-- -- - -- -~
..,rl''' ~:-:,
. . ~
76
former pattents of the LakeshorePsychtatrtc Hospltal are stored tn Un1t 4-
basement When a former pattent came to Admttting the clerk or nurse would
find the locatlon of the patlent's cllnlcal records on the computer However,
a regular clerk was not always scheduled to work through all mghtshtfts tn
Admt tti ng The nurse would go on the flle retrteval only when neither the
clerk nor the coordlnator was available
Santos testified he had done over 1,000 escorts for file retnevals tn hlS 11
years of servtce as a securlty offtcer Most of them were done after 4 30 pm C
on week days, a lot on the weekends, starttng in the mornings, but very rarely
on then1ght Shlft, between 11 pm and 8 am When he was called upon to do a
flle escort on the ntght shtft, Santos satd, it was most often wtth a nurse
coordInator or a clerk Only once dtd he ever escort a nurse on a ftle
retrleval on a night shtft, and that nurse was Cruickshank He testifled also
that hts file escorts were most often to the first floors of Units 2, 1, 4,
and 3, for the clintcal files of pattents who had been discharged from those
unIts, and less often to the file rooms of the day care programs located in
the basements of Units 2 and 1, to retrieve the cllnical records of patients
enrolled in those programs
Santos testtfted that the file storage area in Unit 4-basement tS a dull gray
room occupied by several thousand histoncal files in 10 to 12 stacks, and (
that tt tS not at all stmIlar to the Unit 2-basement area occupted by a day-
care program, which is colourfully decorated and furnished, and contaIning
male and female washrooms, several small offices for staff, where 30 to 45
ftles are kept in a small wall um t in one of the small offices They are so
very different that lt is impossible to mistake one for the other Nor are
they close together Both are in the basement, but in two separate buildings
about 100 feet apart and connected by underground tunnels Santos testified
that a ftle must not be removed from or returned to the Unlt 4 file room
without the responsible person signing for it, both out and in Santos
testified that it IS verv diffIcult to understand how Cruickshank or anvone
else could oossiblv have been confused between the two file rooms. in U-2 and
U-4. when thev are so very different.
,
.
\..~
'-'
z
77
Santos's evidence is that the onlv occaSlon he had escorted anvone on a flle
retrleval durtna a niaht shift was also the only tlme he had escorted
Crutckshank to retneve a oatlent's records He descrtbed that occaSlon ln the
followtng manner He met Crutckshank at the Admltttng Department to escort her
to the Untt 2-basement They took the route above ground On the way they
conversed normally as they walked and she had her arm around h1S "If anyone
had seen us they would have satd we were havtng an affair " They went to the
flrst floor of Unlt 2, to the clinlcal records room behind the sWltchboard
operator's booth tn the lobby Cru1ckshank had the key to that room She
checked there and couldn't find tt After the brief check there, they took the
elevator to the basement to check the day-care records in Untt 2-basement She
had the key to that too She couldn't ftnd the ftle there so they went back to
the first floor by the same route It was the middle of the n1ght She checked
the clinlcal file room agaln, more thoroughly this time Agatn, she dldn't
f1nd the ftle there They returned back to the basement agatn because she
thought she might have missed it He did not recall finding the file, but he
remembered that she had checked the basement twice They returned by the same
route, the elevator to the ftrst floor of Unit 2, and then by the walkway back
to the Admttttng Department "I don't remember what happened after I escorted
her back to Admttttng I don't remember the date, but I remember that escort
because tt is the only one I ever dtd wlth her"
Santos said he had known Cruickshank since she started working tn Admitttng
"We were on friendly terms We had a comfortable relationship developed over
several years I never had any complaints from her We had very
amlcable worktng relations We were two working friends " Santos described an
inctdent that happened before she started working in Admitttng
He had given her a rtde on a scooter he used for "trouble shoottng" at
times on the nlght shtfts It happened a long ttme ago He hardly knew
her, long before he escorted her to the U 2-basement He was gotng to U-2
[ftrs~ levelJ tn response to a radio call to open a door, when he saw
Crutckshank and gave her a ride to the U-2 lobby It was a one-seater
scooter He stood up and she sat on the seat "She must have held on to
me It dldn't last long, only about a mlnute I let her off and went about
my business " It was a one-way trip Nothtng special happened He knew who
she was and may have known her first name
-,,'.
.
78
Santos denled Crulckshank's accusatlon {fourth alleaatlon1 that he sexually
assaulted her ln either the U-2 or U-4 basement "I never touched that lady, I
never layed a hand on that woman in a harmful way or tn any lnapprOprtate way
I never harmed her I never dtd anything to that lady except be her frtend "
When questloned on the first alleaati~n, where Cruickshank alleged that some
day ln 1989 he pulled down the front of her blouse and looked down tt, Santos
strongly dented 1t ever happened "I never looked down her blouse I never
pulled her blouse I never pulled any part of her clothtng " f"
" ,;
"'/
Santos dented also Crulckshank's allegattons regardtng the second alleaation
"No, I did not invtte her to JOln me on her break in the physlotherapy room
upstai.rs I couldn't have because I dtdn't have the keys for access to that
room I never asked her to go anywhere wlth me on her break"
The Employer Member, Mr O'Toole, asked Santos, "do you also deny ever gotng
wlth her on a break together?" Santos replied There's been lots of sexual
banter between htm and Cru1ckshank, and tt was mutual, but he never asked her
to go'anywhere with hlm for a break The only breaks he took with her were
when he sat wlth her in the worklng area of Admittlng At ttmes others were
there as well They would often share a ptzza, food that he got from outslde
because there is no cafeterta On occasions she brought food from home and ('
shared it wtth hlm They celebrated one or two New Year Eves together ln
Adm1 tting "I'm absolutely sure I never asked her to ]otn me on any spectal
break, on anyth1ng llke she says"
When questioned on the third alleaation Santos replied ln this manner
He di.d not recall telling her 'I don't want to marry her, and that I Just
wante~ to have fun', but he could have satd tt when they were bantering
around "We would talk about sex in a joking way" He said he never took
anythtng she said sexually as serious and she never took anythlng he sald
sexually as serlOUS "We would try to see who could embarrass who just for
laughs" He dldn't see her that often, not every day, but on a few occastons
when they worked the same shifts "Bantering wasn't the only way we related
('-.
-;
~
79
We had normal conversattons about every day llfe We talked about vacattons,
about what was ln the newspapers that day, but we never talked about our
personal llVes "
Santos descrtbed hts relatlonshlp wtth Cruickshank tn thts way
When they engaged in sexual bantertng she laughed and smlled and she would say
thlngs in a frlendly way He never offended her If he had known she was
offended he would have stopped tmmedtately "I am sure I never mlslnterpreted
my frtendshlp wlth thts woman" He never found her to be uncomfortable 1n
thelr sexual banterlng He belleved she felt comfortable enough wtth h1m to
be able to tell me if she felt anything he said or dtd made her uncomfortable
He could not have had a relatlonship with her that long wlthout a complalnt
from her, if there had been anythtng he dtd wrong If he ever made a mlstake
or offended anyone by what he said he was always the flrst to apologlze
"I don't dtsagree that she was shy and paSSlVe wlth certmn people, but not
wlth me She was not shy and passtve around certatn people she was comfortable
wlth, and she was comfortable around me, to have ptzza and to talk w1th me
She was open wtth me and never embarrassed wtth me Lots of people dtdn't take
the t1me to talk to her and get to know her I dtd because I'm a people
person "
Regardlng the fifth alleaation. Santos testifled he dtd not remember saYlng
to her "you need to get latd", and he does not believe he would have satd that
to her He explalned why in thlS way
He often said to people 'relax, relax, you're too tense', and that's what he
mlght have satd that night if she was getting up tight He usually sald thlngs
ltke that to people when they get too sertous because tf you work at Queen
Street you must not take life too seriously From the klnd of problems he
experienced wtthpatients at Queen Street, he learned not to take thtngs too
sertous ly "You need a sense of humour where I work There are certaln phrases
I use around people to get them to laugh or lighten up, Itke calling them
'baccala head' or 'tumor head' " He thought it was llkely he called her a
baccala head, Itallan for cod head "I'd never say to her 'you need to be
lald' "
The sense of his testimony is that whatever he may have satd to Crutckshank at
that ttme was intended to help reduce the tension in the situation, and not to
offend her
- ----
~ .
80
Regardtng the stxth alleaatlon alleged by Crui.ckshank, Saritos testtfled
She told h1m she couldn't get the world cup soccer games on her TV and he told
her it was now free on the TSN channel She had not known thlS She asked hlm
to tape some games for her and he told her he would be glad to do it because
he had a VCR She knew he was tnterested in soccer and asked him to go to her
place after the night shi.ft to watch the games on tapes
"She asked me out of frtendship 1 told her 1 couldn't do that after worktng a
12-hour shtft She never asked me again to tape a game I had left it up to
her to let me know whtch games she wanted me to tape After that, during the ("1
two or three weeks of the world cup, our conversations were about the games
and not about tapes I never said anything about going to her place to watch
the games and sleep wtth her 1 never took anythtng she said about the games
to be sexual, and I never said anythlng sexual in connectlon with the games"
Santos dented Crutckshank's seventh and etahth allegat10ns concerntng
lnCldents 1n the "bed and slnk" room where she usually took her breaks
He was never in that room wtth her He has used that room to wash up, often ln
the company of ambulance attendants or police, and usually after restratntng a
patient "I have gone there to wash my hands, but never by myself that I can
remember "
When asked tf he recalled a discussion wtth Cruickshank, after her allegattons
about the bed and stnk room, when- she said "I'll tell your fiance if you
don't stop", and where she said hts reply was "my fiance -doesn't care what I (
do as long as I don't leave her", [eiahth alleaation], ~antos answered
"I don't recall tt, but that would not be unusual, in our joking around I may
have said somethtng to that effect But I would not have said my fiance
wouldn't mInd watching" He would not say that about his fiancee, not even
in Jest, because it would be insulting to her "1 joke about myself, 1 don't
Joke to insult others It's ok to insult me in jokes, but I wouldn't insult
others I prefer to call her my f1ance although our frlends and famtly regard
us as husband and wife"
When asked tf Crulckshank asked htm when he was getting married, Santos
rep lled "Yes, she did We talked about marriage more than once I told her we
wanted to get married but we wanted to buy a house first We had lots of
'<:-
'j''; .'
~
81
conversatlons of that nature I recall the subJect ofmarrtage came up ln our
normal conversattons "
Santos was asked about the occaS1on whtch Crutckshank sald she had handed htm
some literature on sexual harassment He replled "She never gave me anything
to read on sexual harassment" However, he did recall that she had once made a
comment 'what we're talking about could be considered harassment' and hlS
response was 'yes, but who is harasstng who?' He said she laughed and smlled
and that was the end of that dlScussion "Her comment was not ser10US and
neither was mine It was friendly banter We were Jok1ng around If she was
serlOUS she would have looked me in the face and would not have laughed about
1t when she said 1t "
Santos dented he tnvtted Crulckshank to Join hlm on a break and he dented ever
saytng to her he "would be gentle" [mnth allegatton1
Santos described what happened on July 19, 1991 rtenth alleaat1on1
After the afternoon Shlft had gone home, about 11 15 pm, he locked the front
doors of the Admitttng Department Then he went tnto the nurslng statlon where
Crulckshank was alone and they exchanged pleasantrtes She was at her desk on
the north wall and he was standtng near the door [1103} ln front of the
bookcase on the west wall, next to the door He was looklng for somethtng to
read on the bookshelf While they were Joking around ln a teaslng manner she
satd 'you're all talk', as she walked over to open door 1103 He turned
around She was there right behind him when he put h1S hands on ~er hlpS and
asked her 'are you sure I'm all talk?'
"I think I might have startled her I had a light grip on her waist, Just
above her htps, when I suddenly let go She lost her balance and fell forward
My back was to the door when she fell away from the door, toward her desk I
moved toward her to help her up " She said she was ok and would get up on her
own She looked up He saw her looking towards someone ln the window behlnd
his back "I turned around towards the window and I saw Dr Logan comlng into
the lnterVtew room She got up and ran past me to Dr Logan" He dtdn't see
- - - --
---.- --
."
.
82
hlm unttl he turned around toward the glass partltion WhlCh was the top part
of the wall next to the door She ran tnto the lnterVtew room where Dr Logan
now was
"I don't know what she told htm but I heard her say something ltke help me,
I
help me I was stunned I was feeltng odd (or, awed?) I wondered what Dr
Logan would be thtnktng I remalned ln the nurstng statton feeling very
awkward I felt it was embarrasstng because Dr Logan dldn't see what
happened, except he could have seeh me trytng to help her up from the floor, f~
and he mtght draw a wrong conclusion, especially after seetng her run out of
the room "
After about three minutes, they ca~e back to the nurstng statton Santos SOld
he started blabblng and sald 'Kath~, you trtpped' and she answered 'leave tt
alone' After 5 or 10 mtnutes, he left and went to the Securtty Offtce where
I
he told hlS two partners Brent Welsch and Steve Kerr about what had Just
happened He told them it looked e~barrassing and made h1m feel awkward He
I
could not remember what they had sqtd to him
About an hour later Santos got a call from Admttting to open the door for a
patient He was st1ll feeltng awkw~rd but he thought Kathy {Cru1ckshank}
seemed to feel OK I . (
He asked her, '00 you know what you d1d? You went runn1ng
'-:.:
to the duty doctor?' He told her h~ was concerned what the doctor mtght thtnk
She sald, 'Leave tt alone Everythlng 15 alrtght I dtdn't tell htm anythtng ,
I
He made a pot of coffee wh1le watttng for Dr Logan "She was friendly and
I
smlltng and when the doctor was there she SOld I made a good pot of coffee
I
That all made me feel better She satd that tn front of the doctor She was
pleasant, bubbly and back to norma 11 It made me feel more comfortable and what
I was feeltng went away It was a ~usy ntght I spent most of the night in
Admttting after that I went a couple of blocks from the hospttal to get some
ptzza for us, and Kathy and I had our lunch together in the nursing station
between 1 and 2 am "
.'
"--
~
0
83
When asked about Crulckshank's testlmony regardlng the comment he made ln the
banter precedlng the tnctdent, that he told her she is losing wetght and that
her breasts are getttng smaller, he replled "I never satd that But sometlmes
we dtscussed diets in women's magaZtnes, how people lose wetght, lots of
things Itke that I don't recall discussing diets with her the ntght of July
19th, but tt lS somethtng we could have discussed"
Santos dented touchlng her breasts when he held her "That lS not true I dld
nothing like that I just touched her hips What she descrtbed was not
flirtlng or Joking around between friends It wasn't at all like she
descrtbed The only phystcal contact was my hands on her hlpS, whtch was done
ln a )oktng and frlendly manner {By gestures, he tndlcated what he meant was
that he held her immedlately above her hips, at her watst }
Santos dented also telling Cruickshank that what he dtd wlth her he ~oes all
the ttme with Debbte and others
Santos acknowledged Hart's evidence that he parttcipated in a conversatlon
between her and Cru1ckshank regarding Itngerie ads and that he had asked what
kind Crulckshank llkes to wear He descrlbed it as a normal response in that
conversatton He was sure Crutckshank was not upset by anythtng he had sa1d
When questioned regardlng Hart's evtdence that she heard htm tell Cruickshank
that she wouldn't be creat1ve tn the bedroom, he replted "I don't remember
saytng that But we somettmes had sexual banter like that We Joked about sex
and preferred poslttOns We talked about thtngs like that, we would throw
ideas around, in a bantertng way"
Santos denied Hart's clalm that she once heard him tell Cruickshank he would
like to father her children "I definitely never made that comment, not even
in a joking manner "
Santos denied also Hart's evidence that he once offered to let Cruickshank see
his penis He acknowledged however he has talked on occasions about n1cknames
for a pents and he likes to tell about comedtan Robtn Willtam's three funny
,
.>
84
names for lt "heat-seeklng-mo1sture mtsslle, python of love, and Mr Happy "
Santos satd Hart might have misunderstood some of hts Joking He explatned
that he uses his sense of humour to Joke about such sexual th1ngs in order to
deal wtth the embarrassments created ln the Admitting Department by patients
who arrlve naked or who strip when they get there He needed a quick Wlt ln
hts work, he satd, tn order to deal wtth the many strange things that happen
in thts mental hospttal, llke pattentsmaking love in hallways He would Joke
about these thtngs wlth Crulckshank At tlmes, others would be present But he
.-
sald his joklng was about everything, not Just about sex He sees htmself as (,
"a Joktng guy", Just as many witnesses described him
Santos testifted that hts Joking wtth Cru1ckshank was not only sexual, but
also about other thtngs Nor was the teastng and Joktng Just one way Most of
the time they had normal conversations, but somettmes she trted to embarrass
him She once told him, 'I usually end up sleeplng with people if I feel sorry
for them', when he answered not to worry for htm The time she talked about
sleeptng with him he took as a Joke to try and embarrass htm She also offered
to get him dates wtth her friends whom she descrtbed as just perfect for htm
However, he didn't thtnk she was trytng to set him up "She would be teastng
or kiddtng me in her way, just Itke I would in my own way"
In response to questions on Donnelly's evtdence, Santos acknowledged -he had (
'.
produced the clay penis which he and Kerr had given as a prank gift to a close
frtend, Debbie McKeown, a nurse, who also worked in Aamitttng, but on a
dtfferent shift than Cruickshank "We made sure no patients were there when we
brought in the gift-wrapped box" Debbie opened it, looked in and laughed, and
left the box on the desk Nobody could see what was in the box unless they
came right up to it and looked in "Debb1e and I have been friends a long
time We socialize outside of work with the same frtends I knew it wouldn't
shock or offend her or others who know me And they know I wouldn't do
anything to offend or hurt anyone It was Just a gag gift to a frtend "
Santos described the gift as a "gag" We understood thlS to mean a hoax, a
humorous deception, a harmless trick or sham which amuses by its startling or (~
~
..
85
surprlslng qualttles Santos recognlzed that not everyone would see the humour
of it, and he took steps to assure that those whom he did not know well or
whom might be offended by it, were not exposed to the "gag glft"
It tS our tmpresston that much of hts sexual bantertng and Joktng were "gags",
ln a simllar sense He assured us that Jokes such as- these are reserved only
for hts frtends In our judgment, such Jokes are not lnherently harass lng, but
they could be sexually harassing tn partlcular clrcumstances, however,
dependtng on the nature of the relattonshtp between the receiver and sender,
which could affect the "message" that the sender intends by the "Joke" and the
meanlng WhlCh the receiver wtll percetve
Santos testtfted that he had belteved for a long ttme that Cru1ckshank was hlS
frlend She part1clpated 1n the sexual Joking and bantering, although not to
the same degree as closer frtends There are certain thtngs he would not say
or do to her because he would judge them to be unacceptable to her, based on
the knowledge he acquired in their relationshlp Santos testified that
Crutckshank never told him that she found his jokes, bantertng or pranks to be
1nappropriate, offensive or harasstng Nor dld any of h1S co-workers Nobody
ln management ever satd anything to htm about his sexual Jokes or pranks He
testlfted also that he had never recetved any informatton on the Mlnistry's
sexual harassment policies unttl Yetman sent htm a copy in the mail, after he
I was appotnted Investigator of Crutckshank's complatnt
I Santos testifled that when he was suspended he was simply told that he was
I accused of sexual harassment The Employer refused to tell htm who made the
complatnt Hts November 12, 1991 grtevance on hts suspenston resulted tn hts
return to work without loss of pay He found that even after hts return
nothing was being done about the sexual harassment allegattons agatnst him
That is why he grteved again on November 22, 1991 to seek an immedtate
tnVestlgattOn of the complatnt
c'"''
>
86
THE CROSS-EXAMINATION OF SANTOS
Santos was shown a letter by Employer's counsel whtch he tdenttfted as the
letter dated March 23, 1992, addressed to h1m by Alltson J Stuart,
Adm1ntstrator, QSMHC, whtch dtSm1ssed hlm from his employment [EXHIBIT 33J
[This was the first t1me the panel saw thts letter J Santos said he dtd not
attend the d1sm1ssal meettng wtth the Superlntendent because tt was called on
one of h1S off-days It was deltvered to hIm through a Union representatIve
who attended the meetlng on hts behalf (-
Santos conftrmed that he had met and courted hts ftrst wtfe and hts present
fiancee whlle working at QSMHC When asked tf he dtd not agree it was
tnapproprtate for htm to combtne his work and soclal Itfe tn that way, he
replied that he dld not see tt a problem for h1m because he tS not tn a
posttion of power He explalned further
"I only use sexual humoiJr with the people who use it with me. I'll flirt back with those who
flirt with me, if it's harmless. We draw the line on what is inappropriate, according to our
judgment, mine and the others. Everybody at QSMHC flirts in a harmless way That's part of the
atmosphere in that place where you see female and male patients stripping, masturbating and
fornicating All kinds of funny things happen there. I use my humour to deal with it. That's part
of my job as a security officer"
When asked to explain what he means bv "fllrtina" he answered
"It's harmless joking around between two people, or in a group Joking actions do not hurt (
anyone. It means making people feel good. It is not being rude. It is not put downs. It is not
degrading or humiliating someone. It is not being vicious. The humoLir relieves the tensions of
people in the place, my own and the tensions of others. It has to.make you feel good about it, or it
can't be right If someone tells me a joke offended them, I'll never use it again"
He explalned that he uses the word fltrting to mean the same as joking,
although he agreed fltrt1ng' could mean more than that, tt could carry
'elements of sexual innuendo'
When asked how he knows where to draw the Itne, he replled he knows what's
improper from hts upbringing and from getting to know hts frtends as
tndtvtduals, what they Itke and what they don't Everybody at QSMHC, wtth few
except1ons, partlcipate in sexual joking, more or less W1th some, like
Cruickshank, he would joke very Ilttle, because "it is not in her character to
,
"-
.
87
Joke very much, so we talk mostly about everyday llfe" Wtth a few nurses
there would be no sexual Joking They are his good frtends, he satd, but he
felt that Jok1ng with them sexually would feel llke joking wlth hlS mother
He stated that he was astute enough to know wtth whom he could and could not
engage in sexual banter and where to draw the line, how far he could go
wtthout hurttng or upsetttng them He explained that the basts for hlS
declslons was his personal knowledge of the lndlviduals Wh1Ch he acqulred 1n
hts working relattonshlps with them over a perlod of time A person could be a
very good friend, yet he would not joke with them, or he would joke only ln
limtted ways, dependtng on how he Judged thetr character Over time, he
learned from them thetr ltkes and dislikes "When you work together a whlle,
you get to know what ktnd of persons they are from the everyday contacts wlth
them You learn about them from thetr reacttons to thlngs "
Santos stated he engaged in sexual banter wtth Crutckshankbecause she engaged
in it with him They did so together He satd she was quiet and passive wlth
certatn people, but once she got to know him she was not shy with htm She
opened up and they talked about many things "We really dldn't Joke all the
time We talked about a lot of thtngs And don't forget we weren't often
together, only about two shtfts a month, and even then we had our Jobs to do
We couldn't Stt around and talk all the time Bantenng was only a mtnor part
of our conversatlons Most of the time we were together we talked about work,
about the news, and many other things I really didn't have a lot of contact
with her" In the period she worked in Admitting, he said, there would be 2
shtfts per month, up to 4 at the most in some months, when they would be on
the same shtfts She only worked n1ghts and he was on ratatkon At the reqI,Jest
of Employer's counsel he estimated that about 20% of his time with her
tnvolved joktng and only about 1% was sexual Joking
Santos acknowledged Crutckshank once said in a joke "this could be sexual
harassment" He said that was when he ~nswered "Yes, but who is harasstng
who? She laughed That was the end of it She said it only once It was satd
as a joke "
---------- - - --- ------ -~-- - - - --- -- -~------- -~
~
. .
88
When asked why he thought Crutckshank would lte tn the eVldence she gave us,
he answered "because it had come to this stage and she was too scared to say
thts thtng has gone far enough" Santos was then asked to explatn why
Cruickshank requested her head nurse to arrange for them to work dlfferent
shifts, why she no longer wanted to work with him He replied that
he dld not know why because he never gave her a problem "You should ask her
I can only glve you my vers1on, that she was embarrassed by that tnctdent
{where the duty doctor saw her gettlng up off the floor} because tt appeared
unprofesstonal and he mtght have concluded something improper And of course, f~
everything she inltiated after that became even more embarrassing to her"
After that inctdent, he told her "no more banter" because of the way she acted
runn1ng to the duty doctor ln "a weird, bazaar way" He thought she told the
doctor somethtng dtfferent than what actually happened between them "I no
lonaer felt comfortable with her. That was the last t1me there was any ioklna
between us. I stoooed. not because she had asked me to stoo " He could not see
how she could possibly see a different context to that incident than what
really happened "We were joking and fooling around ;She knew that at the ttme
as much as me "
Santos was asked to expla1n why Cruickshank would have waited about three
months after the inctdent before asking her head nurse for the shift changes (
'..
He replied that after the 1nc1dent, until October 9th, they could not have
worked more than three shifts together They no longer joked when they saw
each other Their relationshtp was changed There was no joking around "It
could be she no longer felt comfortable with me For me, the trust was gone I
no longer wanted to joke wtth her" He said that three months after the
tnctdent, thelr relationshtp was no longer the same They hardly had any
dealings wlth each other He was away on vacation in August His view is she
felt uncomfortable and awkward with him because their relationship had changed
and he could no longer joke with her "And I guess she didn't want to work
around me, so that's when she went to see Vita about changing our shifts, to
make things more comfortable for both of us, I would think"
{
'-
. I
89
Santos repeated ln cross examtnatlon that Crulckshank never told htm that any
of his comments were rude. unwelcome or offenstve. neither bv her word nor by
her act tons. When asked for hts views on certa1n sexual comments WhlCh he lS
alleged to have made to Crutckshank, he replled he could not do so wtthout
knowlng the context ln which the comment was supposed to have been satd
"Tlme tS lmportant, when and where were the comments made? And It IS tmportant
for me to know what were the ctrcumstances tn order for me to understand and
explaln the comment "
When asked tf Crutckshank ever satd no to hts advances, he promptly repl1ed,
"I never made any personal advqnce "
When asked for examples of sexual bantertng wlth Crutckshank, Santos responded
that the bantertng was not always inItlated by hlm He gave as an example an
occaston when she asked htm how often he had sex and what were hlS
preferences He said he answered these questions without asking her the same
quest tons He did not take this sort of bantertng to mean she was sexually
interested in him, nor would she have taken his banterlng in that way
Santos conflrmed agaln tn cross examinatton that he had parttctpated tn a
discussion on ltngerie which Robtn Hart descrIbed, and he again expressed hts
, confldence that there was nothing wrong with what he satd ln the context of
that situation "That was the only tlme I can recall dtscusstng Itngerle w1th
her "
Santos said he was conftdent that he would not say "you need to get laid" to
Cruickshank rfifth alleaation1, or to any female, because tt would be too
crude or offenstve to say that to most of the women he knows, and he certatnly
would not say that to Cruickshank However, he was uncertain whether he
discussed nicknames for a pents tn the presence of Crutckshank, but even tf he
had done so, he was confIdent it would not have been offensive or improper
because it would be done only in the context of an approprtate sttuation When
he engaged tn such d1scussions, the people present are only those who ln hlS
judgment would not be hurt by his humour
~
.
90
Counsel asked Santos why he thought tt was too offenSIve and crude to tell a
woman 'you need to get latd', and not so if he tells her the ntcknames for a
pems He explatned that ln hlS Vlew such a remark to a woman lS not a Joke
when it is personally offensive, but d1Scusslons and joklng about sex and the
pen1S lS everywhere You hear lt all the time in the mOVtes, on TV and at
work Even so, he would not make his Jokes about the penlS tn the presence of
anyone who would be made uncomfortable by it
Santos was then asked to express htSOplnlOn on which of two COO1l1ents would be f~
Ii._,.
more offenstve to a female whom he does not know He replied "I don't have an
oplntOn because I do not talk about those thIngs to people I do not know"
He went on to explatn that the nature and extent of hts sexual Joktng wtth
women at QSMHC depended on how well he knew them, as well as on his personal
Judgment, based on hts experience wtth each woman, on what would and would not
be offensive and unacceptable to them He Joked in a different manner wtth
d1fferent people, based on their 1ndlV1dual d1fferences 1n the1r sense of
humour, on what they found to be amusing and acceptable Jokes ranged on a
scale from the innocuous to the extreme He was asked to rank some examples on
a scale of 1 to 10 He was also asked to rank Cruickshank and others on a
similar scale of thetr acceptability of such humour ( -"
The clay pents joke tn hts Judgment ranked near the high end of that scale,
and he would use tt only wIth people who ranked hIgh In theIr levels of
acceptabtlity for such Jok1ng In hts sexual joking and bantering with
Cruickshank, in order not to offend her, he exercised his judgment on what he
believed she would find offensive He ranked Cruickshank at 2
Santos was confident that Cruickshank was the kind of person who would have
told htm if she was offended by any of his comments, but she never did
"My Judgment on where to draw the line depends on what she says to me when we
are joktng around That's how I draw the bantering llne wtth anybody I do not
engage In banter1ng unless tt lS mutual"
f
\
"'-.
~
91
In explainlng further how he draws the line, he said he would not have used
the clay pen1S Joke wtth Cruickshank because he ranked her at a 2, too low
level of acceptablllty for such sexual Joklng However, he could use that klnd
of Joke wtth hts good friend Debble whom he ranked as a 10, h1S partner Kerr
whom he ranked also at a 10, and Donnelly whom ranked as "maybe a 7" He
ranked htmself at the 10 level
Counsel ask~d lf tt was possible for him to say somethlng offenstve and not
realtze tt until it tS out and he replied, that it could happen, but he could
not recall thatlt ever happened to him
When asked about Donnelly's evtdence that she was "shocked and embarrassed" by
his gag gIft to Debbie, he responded "Yes she saId she was embarrassed, but
certatnly not dtsgusted " She never spoke to htm about tt He only saw her
laugh "My impresslon was she enjoyed the Joke and there was no non-verbal
display of shock or embarrassment.. Everybody there had a good laugh I
wouldn't show it to anyone who m1ght ftnd tt offenstve "
, some who saw tt may have been
He described the reactions of those present surprised or startled by it, but none indicated it was an unacceptable Joke
Although ln our Judgment lt could be seen as a somewhat gross or tndecent
joke, in his judgment no one showed any indication that' the gag Joke vexed
them or that tt exceeded their limits of acceptability for sexually expltC1t
humour The evtdence of witnesses do not contradtct his judgment of the event
Regardtng pictures of themselves in topless bathing SUtts which .~ere brought
back from a vacation by Debbte and Dr Doumanl and which were shown by Debble
to other employees in the Admitting Department, Santos was asked to express
his vtews on the acceptability or appropriateness of dtsplaytng thoseplctures
of female breasts among the employees He replied that there were only two
people at QSMHC whom Debbie would not have shown them to, and 1t was only
because she dld not llke them It had nothing to do with the appropriateness
of showing topless pictures He refused to say if Cruickshank was one of the
two because he thought "ttwould be unfalr to Debbte and Kathy" However,
'"
. 1.
92
based on hlS own knowledge of Crulckshank, he would not have shown her those
ptctures
On the thtrd alleaatton, Santos was asked tf he thought lt would have been
offensive to tell Cruickshank 'I don't want to marry you, and that I Just
wanted to have fun' He replied that tt would depend on the circumstances and
sp1r1t in WhlCh lt was said "It would have been offenstve if it meant I
wanted to sleep wtth her If I did say tt, I could not have meant I wanted to
sleep w1th her because that tS not the kind of relationship I had with her We .'"""
(J
had a working re lattonshtp, not a prt vate re lattonshtp " Mr O'Toole asked
Santos -to expla1n the dt fference He answered "I had a worktng relationshtp
wtth her because the only tlme I would see her was at work I never asked her
for a date I never saw her after work We dtdn't soctaltze outstde work We
never went to the same parties Our relationshlP ended when our work ended My
prtvate relationshtps are with the people I socialize wtth outside of work,
they are my frlends at work who are also my frlends outside, after working
hours "
Santos dented agaln ever belng. in the bed and sink room with Cruickshank He
was emphattc that the two alleged tncidents In that room never happened
rseventh and elahth alleaattons1 (
Regarding the basement tncident rthe fourth alleaation1 Santos said he was
absolutely certain he had only one escort w1th her and that Crutckshank was
wrong tn saying he escorted her on two occasions He could not recall when
that escort had occurred, but he said the Employer should be able to hnd a
record of it in one of his daily reports He did recall, however, that the
escort on that occaSlon was routine in every respect except that it was wtth
Cruickshank, WhlCh was not routine He usually escorted the clerk or the nurse
coordinator on a file retrleval and rarely a nurse He recalled also that she
was very friendly toward him on that occasion Santos insisted that she
falsely accused him of assaulting her "She was wrong in saying that the
e~cort was to Unit 4 She was sure it was to Untt 4 until someone told her
that it was not true" C_
~
~
93
Santos sald he was certaln that he dld not tell the Investlgator anythtng
d1fferent than what he told us in hlS testtmony The tnvesttgator's notes, he
said, "were not verbattm what I told him and could easily be mtslnterpreted"
He sald they were tncomplete, inaccurate, and he told Yetman so "If there 1S
an apparent dlfference, it is because he d1dn't write down everythlng I said,
and there could be several ways of lnterpreting hlS brlef notes "
[Yetman's eVldence conf1rmed that he assured Santos he would not mlStnterpret
what Santos had told him, and that his notes had to be explatned Yetman had
difficulty explain1ng to us hlS own notes on his intervlews with Santos, when
he testifted, partly because he did not record the quest tons and partly
because he d1d not fully record Santos's answers]
Santos sa1d he thought the Admttttng room inctdent of July 19th [tenth
alleaatlon1 happened between 11 10 and 11 50 pm, although it may have been as
late as 1 00 am [the time indicated tn Yetman's notesJ He was alone wlth
Cruickshank in Admitting at the t1me {Cruickshank's evidence was that lt
happened after Cyfko's round, whtch was between 12 30 and 1 00 am Dr Logan
testtfted he had arrlved to see Cruickshank getttng off the floor "at about
11 30 pm"}
c Santos agreed that sexual banter preceded the lncident He denied he made a
comment on the size of her breast and confirmed his earlier statement that she
had told him he was all talk He d1d not agree with Crutckshank's evtdence
that he was sitting at the computer desk because by that time he had moved to
the bookshelf where he was standlng as she walked toward the door
He aareed essentially wlth her evidence that he had turned around behind her
and out his hands on her waist [He had said 'hips', but hts gestures
indicated he meant her waist, immediately above her hips J He said that this
was prompted by her comment about him being all talk He thought shedtd not
antlCtpate this reactlon and was surprised by it He agreed also with the
suggest10n of Employer's counsel that the event was preceded by sexual banter
He explalned that he was standing at the bookshelf only about SlX inches from
- - -
1 J
94
her, wlth hlS back toward her back, when she sald 'you're all talk', whereupon
he turned around saytng 'I'm all talk am I?', placed h1S hands on her watst,
and pulled her towards htm At thlS pOtnt, he was faclng her back, the door
was beh1nd hlm, the book shelf was at his irrmed1ate left, and the desk was at
his rlght She reacted with surprtse and seemed startled He dld not hold her
very long before he let go, she lost her balance, stumbled very suddenly, and
felt to the floor He sald it all happened very quickly
When asked why she stumbled and fell, he expla1ned that although he dtd not
have "much of a grtp on her" she was surprlsed by tt His theory was that she ?,
( "
very Itkely thought he was holding her more ttghtly than he actually dtd, just
at the lnstant when she was twistlng to break away from him He sald she was
startled when she broke away and fell forward He accepted counsel's
suggestion that he would have had no difflculty holdlng her more securely and
for a longer pertod tf he had chosen to do so He reJected counsel's
suggestlon that he let go because he saw the duty doctor coming before
Cru1ckshank saw htm He said he could not have seen htm com1ng because hts
-face was turned away from the window all through the event, unttl Cruickshank
was almost back on her feet He offered no explanation why he let her go as
suddenly as he had taken hold of her
Counsel asked Santos tf he had ever touched her before He replled thls was
the first ttme he ever surprised her by touchtng her He confirmed he never ("
dated her, never soclalized wtth her outside of work, and he never touched
her, except they mtght have hugged each other when they celebrated New Year's
Eve or Christmas Eve at work He satd that the way he touched her waist was
not inapproprtate, "not in the way I touched her and not tn those
ctrcumstances"
He agreed that "she did not lnvite him in any way to touch her", but
nevertheless he believed tt was not inappropr1ate in those ctrcumstances
because tt was a spontaneous action, a light hearted touch, which could not
have been interpreted as a sexual come-on tn the context of the kind of
relattonship he had with her He satd hefe It confident, at the ttme, t n hl s
frtendship with Crutckshank that she would understand and accept htm as a {..
\--
~
~
frtend who was Just Joklng around ln hts usual way, wtthout any sexual
tntenttons
Santos dented he could posstbly have seen Dr Logan through the window before
Crulckshank saw htm He could not have seen Dr Logan from hlS posltlon at the
door unt1l he was dtrectly outside the glass partitton That was because of
the Jog ln the partltlon wall Before she fell both of them had thelr backs
toward the door as well as the window, which is to the left of the door and
above the table He could not see hlm while he was standlng over her, wlth hlS
back to the wtndow, offering to asstst her She could not have seen him unttl
she was getttng up, when she turned her head around toward the wlndow
Santos was not re-examlned
Procedural Problems
On several occasions durtng the proceedtngs Mr Coleman complatned about the
unfalr manner tn whtch the Employer was presentlng its case, ln that much of
the eVldence we heard from many wltness, before hearlng the compla1nant, may
~ ) prove trrelevant once we ult1mately get to hear the compla1nant's testimony
Also, they could not be cross-examlned on matters artsing from the grlevor's
I evtdence before that evidence has been heard He claimed that the delay ln
productng the complainant's eVldence, as well as other crlttcal eVldence
~ requtred to establish the parttculars of just cause for the d1smlssal,
prolongs the heartngs unnecessarlly and serlously affects hlS ablllty to
prepare a proper defense in a timely manner Unton Counsel protested the
/ Employer's declared tntenttons to postpone producing the complatnant as
wttness unttl the very end
We expressed our empathy for Mr Coleman's concerns while assurtng him that
the opportunities for a proper defense certainly wtll not be dented At the
same ttme, we repeatedly expressed our support for Ms Qutck's assertions of
her rlghts and responsibilities for the conduct of the Employer's case, as she
"
.
96
~
-~
sees ftt, in the ctrcumstances of thlS sexual harassment case, to present
\, wttnesses for the Employer tn the manner and sequence whtch she chooses, unttl
that case tS closed, at which tlme the parallel responslbtlltles and rlghts
for the presentation of the defense wlllreside with Unton counsel
Mr Seymour, on more than one occaston, expressed strongly hts support for Mr
Coleman's concerns, stattng that Ms Quick was wasttng a lot of valuable
hearlng ttme on matters that are not tn content ton and that are not relevant
to the disputed lssues In addition, Mr Seymour often and vtgorously C'~
\ expressed hts impatience wtth the continutng delays in getting to hear the
.\ Employer's evtdence on particulars of the complainant agatnst the grtevor and
!
\~: the causes for hts dtsmtssal His crtticisms obvtously annoyed Ms QUlck, who
on each such occaston asserted her rtghts to determine the manner tn which the
~ Employer's case 15 presented On each occasion we acknowledged that these are
~ts as caunsel{t
THE SUBMISSIONS OF 'COUNSE L
.
Thts has been a complex and unusual case in many ways As the case unfolded (,
we formulated formal judgments on two issues, the motlon for non-sutt and the
motion for re-open1ng, on which we have rendered decisions and reserved the
reasons to be given in our f1nal award In the course of prepartng the
dectstons on the motions we had to examine all the evidence in the Employer's
case WhlCh by then had been closed In doing so we became aware of certaln
questlons and concerns which we put to counsel so that each would have an
equal opportunity to address them in their respective arguments ,
On auestions of law, we see the issues to be comparattvely uncomplicated We
all agree that sexual harassment is prohibited by law, by both the Human
R1ghts Code and the collecttve agreement, as well as by the Employer's policy
And sexual harassment ts defined in exactly the same way by the Code, the
agreement, and the policy "Harassment means enaaaina tn a course of vexatious t_
97
comment or conduct that is known or ouaht reasonablv to be known to be
unwelcome" However, there may be some quest tons on how thts deflntttOn lS to
be lnterpreted, as lt relates to the partlcular 1ssues we have heard from the
witnesses in thts case, such as where to draw the llne between 10k1na or
oranktna and harassment We tnvtted counsel to provtde us gutdance on such
questions of law ln thelr flnal arguments
At the same tlme we 1nd1cated our lncltnatton to the vtew that what makes thlS
case parttcularly dtfflcult are the problems related to 1ssues on flndlnas of
,
fact We brought to the attention of counsel some parttcular concerns tn thts
area
Cases uoon WhlCh the Emplover rehes tn ltS final araument
A number of cases were referred to tn support of the Employer's submlSSton
Ontar1o (Human Riahts Comm.) and Bell v. Ladas (1980) 1 C H R R
D 11383 {O B Shlme}
Lvnch v. Theodorakakos (1992) 16 C H R R D Ii {B C Human Rights Counctl}
Ontarlo (Human R1ahts (amm.) and Hall v. Sonao Canada (1989) 10 C H R R
D 143847 {W Gunther Plaut}
McCarthv v L.C.B.O. (1977) G S B 66/77 {K P Swan}
\ Re C. N. R . and C.B.R.T.& G.W. (1988) 1 LAC (4th), 183 {M G Plcher}
Re Roval Towers Hotel and Hotel Emolovees Umon Loc. 40 (1992) 32 LAC (4th),
264, {R B Blasina, Be}
Re Macdonalds Consolldated Ltd and R.W.D.S.U.. Loc 580 (1990) 14 LAC (4th)
173 {C Mc Kee, B C }
Re Pttman Mfa. Co and C.A.W.. Loc. 303 (1988) 32 LAC (3d), 362,
{K A Hinnegan}
Re Extendicare Ltd and Ontar10 Nurses Assoc. (1981) 3L A C (3d) 243
{G W Adams}
Re Canadian Lukens Ltd and U.S.W. (1976) 12 LAC (2d) 439 {S SChl ff}
Gulf Canada Products v. Griff1ths (1983) 3 C C E L 139 {adjudtcation under
Canada labour Code, Rose, adJud }
************
'- .
98
Counsel for the Employer submtts the legal deflnttlon of sexual harassment
tnvolves a dual test f1rst, dld the grtevor know that he was "engagtng tn a
course of vexattous comment or conduct" that ts unwelcome, and secondly. ought
he reasonably to have known that he was dotng so Thts, she submtts, evokes
the "reasonable man" test whtch asks "would a reasonable oerson lnthe same
C1rcumstances have known that the behavtour was unwelcome".
,
We agree that the grievor is obligated to conduct himself as a reasonable Ii.....~
person, and as such, he must know where to draw the llne between harassment f
'\"~,
and humour, between harming and Joktng, between hurting and bantenng We
agree also that the line tS drawn when the Joktng becomes hurtful, hum1ltatlng
I
and demeantng to someone, and yet perststs even after such harmful
consequences are obvious to a reasonable person, thereby creatlng a
destructlve psychologtcal and emotional work enV1ronment As descrtbed by
arbitrator Shime in Bell v. Ladas "Sexual harassment tS a demeaning practtce,
one that constltutes a profound affront to the dlgntty of the employees forced
to endure it "
********************
We agree with Employer's counsel that the grievor was descrtbed by hlmself and (~
many of the Employer's wttnesses as a very popular person at the QSMHC, wlth a
reputatlon as a joker who "felt comfortable engaging 1n the entire gamut of
mtld to explictt sexual joking", and that the complainant was descr1bed as a
"reserved, quiet and private person who was not inclined to discuss her
personal It fe" We would add that although she was not as popular as Santos
and was not percetved asa "Joktng" type of person, she was no less Itked and
respected by her work assoc1ates By no means was she regarded as a humourless
prude by those who worked wtth her
We reJect the Employer's submlSSton that Santos did not have a friendly work-
place relattonship wtth Crutckshank Her own evidence supports Santos's
evtdence that they engaged tn dlScusslons at work on a wlde range of subJects r
-,,~
.. '.
99
Crutckshank testtfied that they had frtendly discusslons most of the tlme,
except for a few occasions when she was offended by or dtsltked hts comments
However, because she never told him otherwlse, we belteve Santos's clOlm that
he had every reason to believe h1S sexual Joking was acceptable ln the
friendly relatlonsh1p he had with her
Crutckshank's evidence tndtcates she was aware of Santos's popularity w1th
thelr work assoClates and that they enjoyed hlS sexual joking, even those
pranks and remarks which she may have regarded as crude or ln bad taste She
anticlpated that they would not support a complaint agatnst h1S sexual Jokes
Thts vtew tS corroborated by Hart who testtfted that when she had d1scussed
Santos's sexual joking with Crulckshank they concluded that lt dld not amount
to sexual harassment
Hart testified also that Cru1ckshank once commented to her alone that one of
hlS remarks was not showing her respect, but she never heard Crulckshank say
to Santos or anyone else that she felt hurt or harassed by hlS comments, or
anything to that effect Helen Geraldt testified she had the impress ton that
Cruickshank dld not ltke Santos's Joking, but she never heard Cruickshank say
so She once heard her say to htm, "oh you and your jokes" Also, Terry Taylor
testlfied that in July, 1991, he heard Crutckshank say she was glad she dldn't
( have to put up with Santos's jokes for the balance of her shtft, but he heard
nothing more than that from e1ther of them
Among the Employer's wttnesses, persons who had worked the same ntght shtfts
wtth both the grievor and the complainant, were Fatima Raza, Helen Gerardi,
Vtta Clarke, Margaret Walker, Mtchele Wharton, and Johanna Donnelly, none of
whom had anything crttical to say about either Santos or Cruickshank Both
were liked and respected None of the witnesses said they had ever personally
regarded any of Santos's sexual banterlng and joking as sexual harassment, nor
did any of the witnesses testify that they ever heard Crutckshank complain
about his sexual joking and bantertng or that she felt harassed by htm
~- ~~ - -- --~- - - -- - ~ ----- ------ ._.~ ----
...~
.
100
Several of the Employer's wltnesses corroborated Santos's evtdence
that sexual bantenng and Joktng between nurses and securtty offtcers are
commonplace at Queen St Mental Health Centre They testifled they had often
observed Santos parttctpate wtth others in such sexual banter, joking, teaslng
and innuendo, but none descrtbed his participatton as harassing, vexing or
unwanted Although Donnelly testified she was "shocked and embarrassed" by
Santos's gag pen1S gift to his friend Debble, as a very crude Joke, there lS
nothtng tn her evidence to indtcate she felt harassed by Santos whom she
descr1bed as "nIce, pleasant and outgolng" r\
We agree with the Employer's submlSStOn that Crutckshank was the type of
person who would not make crude or offensIve comments, sexual or otherW1se
However, our judgment tS that she was also not the type of person who would
never make, ltsten to, or accept inoffensIve comments of a sexual nature She
was not a humourless prude We reject the Employer's submission that
Cruickshank was "stmply not the type of person to engage tn sexual discusstons
regardless of her comfort level" We prefer Santos's evidence, corroborated by
the Employer's witnesses, that sexual joktng and bantering was commonplace in
the workplace and helped staff to cope with the tensions of working with
difficult mental pattents, and that every person on staff had a dtfferent
sense of humour and a different level of comfort, appreciation, tolerance or C'
acceptability for sexual humour, which ranged from very tnoffenstve to
extremely gross and offenstve
Just as "one person's meat tS another person's poison", it is appropriate to
conclude that one oerson's sexual humour is another oerson's sexual
harassment How then tS a reasonable oerson, such as Santos, to know where to
draw the line in his sexual joking with a person such as Cruickshank? Santos
provtded a reasonable explanation He adjusts his joking behaviour with a
person according to the knowledge he has gatned through his observations of
the person's reactions to different situations while working and assoctating
with that person over time Thus, on a scale of 0 to 10, he assessed some
senior nurses {who were like his mother} at the 0 level, Crutckshank as a 2,
his friends Debby and Steve at the 10 level, and others in between ~
~
101
Santos testif1ed that hts sexual joktng and bantertng wlth Crulckshank was
such as he had Judged to be approprtate to the frtendly workplace relatlonshlp
they had developed, based on the feedback he had recelved from her as they got
to know more about each other's ltkes and dtslikes We belteve the reasonable
oerson would dlscover the Itne between sexual humour and sexual harassment 1n
much the same way as Santos dtd, through personal observatlons of reactlons ln
the evolvement of mutuallty ln an inter-personal relatlonshlp over ttme, and
adjusttng one's conduct accordingly Such feedbacks are essentlal to enable
the development of mutuality and balance tn all productlve and satlsfYlng
human relattons whether between work associates, social friends or work
frlends We accept Santos's characterization of his relatlonshlp wlth
Crutckshank as "work frtends" We ftnd credtble Santos's eVldence that
Crulckshank partlcipated with h1m in bantertng dtSCUsslons of a sexual nature
However, we believe she did so ln a very qutet, low-key and passtve manner, tn
contrast to his more active, out-going and asserttve style
In the evtdence of Hart and Cruickshank on thetr discusslons wtth Santos lt lS
very clear that neither one of them had said or done anythtng to let Santos
know that his comments were unwanted or harasstng Hart's testtmony supports
Crutckshank's own testimony that her responses to Santos's comments and antlcs
were usually silence or a simple no From Cruickshank's own testlmony In the
flrst incldent, she slmply called htm a pervert and walked away, tn the
second, she Just sOld no, ln the thtrd, she did not respond at all because she
thought hts remarks .were silly and stuptd, in the fourth, she told htm he
could lose hts job, in the flfth, she said nothlng to h1m at all, in the
sixth, her reply was no, after the seventh and eighth tncidents she told htm
she would tell his flance if he did not stop such pranks, on the ntnth
tnctdent, she did not tell us what was her reply, and after the tenth tncident
her conduct was such as to reassure Santos that hts antics did not affect
their frtendshtp, and he heard no protest or complaint from her about hts
conduct until several months later
Crulckshank testlfled she never told Santos that what he was dOlna was sexual
harassment, and the only time they discussed the subject was when she handed
~:
.,'
102
htm an arttcle on sexual harassment in a Unton paper, WhlCh he treated as a
joke It was establtshed in cross-examtnation that the arttcle she had shown
him was published after Santos was suspended There is nothtng in the eVldence
to support the Employer's submtssion that Crutckshank had informed Santos that
his sexual comments were harassing or unwanted
Santos admitted engaglng tn sexual joking and banter wlth Cru1ckshank We have
no reason, however, to reJect the Unlon's submisslon that the sexual comments
and banter were harmless, non-vtolent, frtendly, and mutually acceptable The &"'"'
t
evtdence clearly establishes that thetr relattonship was friendly and mutual,
and not sexual, and was conftned to the workplace
Crulckshank acknowledgep that Santos never made any effort to soc1allze wtth
her outstde the workplace, never called her at home, and never suggested they
go somewhere together after work He might have been teaslng, klddtng or
hoaxlng her by the comments she alleged, but she testtfied that she dtd not
thlnk he was She desclbed one remark as "silly and stuptd" {thtrd allegatton}
and another as "not approprtate" {fifth allegation} She descrtbed his
behavlour tn some incidents {second, thtrd, sixth and ninth} as "serious",
Wtthout explatntng what she thought he was serious about She satd she
understood his remark ln the ninth tnctdent meant he wanted phystcal contact (
wlth her Wtthout saytng so explicttly, Cruickshank implled that she thought
Santos's comments expressed a deslre to have a sexual relationshtp wtth her
However, even tf that had been her honest impression at the ttme, and if she
felt hts sexual interests were unwanted, there is nothing tn Cruickshank's
testimony to suggest that she ever told Santos, by her words or actlons, that
those sexual SOltCltattOns or advances were unwanted, or that she felt
personally hurt or threatened by anything he had sald or done Her own
testlmony is that the onlv time she ever asked him to stoo doina or saVlna
whatever he was dOlna to dtsolease her was durtna the Julv. 1991 Admltttna
Room lnCldent Her own evtdence is that he had let her go promptly, when she
asked htm to stop, so promptly that she was surprlsed by it and she stumbled
She testified that was the last tnctdent, and it was some three months before (
-~.
.;: '.
103
she submttted her complaInt Very clearly, once he was asked to stop hlS
sexual Joktng and bantering he did so very promptly and permanently It can
not be concluded, therefore, that he persisted In the pursu1t of a course of
conduct that was unwanted
On the tssue of Crutckshank's silence and her delay in maktng a complalnt
against Santos, Ms QUlck urges the Board to appreclate the abuse of power and
the intimidation whtch often is tnherent in sexual harassment She refers us
to the CNR case, [p 199J where arbitrator M G Plcher stated
"It is neither implausible nor unlikely that the first reaction of some women to overt sexual
harassment might be silence. Silence can be the natural consequence of a woman's fear of
embarrassment at the thought of publicizing an unpleasant and humiliating experience. It can
also be motivated by a natural fear of reprisal and the possibility of charges of lying for
ulterior motives or having provoked the male employee by conduct that invited sexual
advances. "
In our Judgment, however, the condttions ctted above tn the CNR case are not
present in the circumstances of th1S case, and can not explain Crutckshank's
sllence We had no evtdence of "overt sexual harassment" such as a verbal or
physical attack that was accompanied by violence or a threat of vlolence, or
any such traumattZlng experience WhlCh might produce a reactton of silence No
vlolence or threat of violence was alleged by the complainant, nor did she
clalm a fear of reprtsal There is no indication that the complatnant feared
the grievor's power in any way On the contrary, she was tn a positton of
somewhat greater power over him on the job The evidence tS that the securtty
guard lS requtred to attend tn the Admitttng Department at the request of the
nlght nurse, and to secure doors and patIents, and to otherwtse provlde
security for her and the night clerk, on her instructions
We agree with the Employer's submission that silence could be a natural
consequence of a woman's {or a man's} fear of embarrassment at the thought of
publictzing an unpleasant and humiltating experience However, the eVldence
does not support the argument that Crutckshank's sllence can be explatned by a
fear of embarrassment In our judgment, based on the eVldence, her strength of
character is such that she can not be easily intimidated or deterred from
i
~
~ ~
104
taktng effective, prompt and approprlate actlon agalnst what she honestly
belteves to be improper conduct She was not ttmorous or reluctant when her
professional judgment led her promptly to refuse a doctor's tnstruction to put
a patient ln restraints Her delay in complaining about Santos's conduct 1S
not explained by her fears Rather, we ftnd that it was her clear and
consctous dectsion not to report the alleged inctdents and that the delays
were the result of her tntelligent, purposeful and dellberate Judgment There
was nothlng but her own lndependent judgment to deter her from maktng her
complatnt known to Santos and the Employer earlier rather than later r
Crutckshank's own explanation of her silence is that she was aware of Santos's
popularity and that her peers dtd not share her distaste or disllke for hts
humour, his sexual banterlng, clowning and teasing jokes She real1zed that
her peers were amused by anttcs whtch she found distasteful She understood
that they regarded Santos's sexual comments as joking, teasing and clownlng,
and not as sexual harassment She was deterred by her belief that a complalnt
agalnst hlS 9ntics would be disapproved by her peers because they did not
regard hlS conduct as harassing
Eventually, some time after feeling the\embarrassment of betng seen by the
duty doctor gettlng off the floor, she chose to get away from Santos's Joklng (
and bantering by asking her head nurse to arrange for a change in Santos's
shifts But that tS not what she got Her request resulted in the Employer
chargtng Santos wtth sexual harassment It resulted also in hts suspenSton and
his dismissal which she clearly and definttely did not want She -opposed the
Employer's dectsion to dismtss Santos As we have already noted above, there
was a constderable delay between the time she requested the Shlft change and
the subsequent investigation of the charge against Santos, during which time
she felt pressured tnto filing a formal complaint of sexual harassment There
was a further substantial and unexplained delay between the investigation and
the dismtssal
Employer's counsel acknowledges that followlng the Admitting room tncident
Cruickshank "dld nothing for a period of several months" In October, 1991, l
'.
105
she approached her superVlsor, Ms Vt ta Clarke After maklng some vague
references to sexual harassment, she asked to be scheduled only on Shlfts when
Santos was not on duty Ms Clarke told her that would be dlfflcult and that
she had to put her request in wrtting This resulted tn EXHIBIT 8 Counsel
J noted explicitly that Crulckshank did not ask for Santos "to be dtSClpllned tn
any way" whtch tndtcated there was no maltce or vtndicttveness on her part
Employer's counsel submlts that Crulckshank, "may well have nalvely thought
that havtng set out her request, with the reasons, management would slmply
allow the request and that would be the end of it But that tS not somethlng a
responsible manager would or tS permltted to do under the law The Employer
has a respOnStblltty to deal with inctdents of sexual harassment when they are
brought to hts or her attentton " Ms Quick points out that at about the ttme
Crulckshank had submltted her letter "the government's sexual harassment
poltcy was belng revtsed and so new opttons were becomlng available"
Cruickshank's failures to inform Santos that his sexual jokes, pranks, and
banter were unwanted reduce the credibility of the Employer's submisslon that
they comprised a course of harasstng conduct She did not regard the tncldents
sertous enough to report at the tlme they had happened Her silence enhances
the credtbillty of the Union's submission that they were acceptable humorous
expresstons which were made wtthin the context of a friendly workplace
relatlonshtp The lncidents which are alleged to have taken place before July,
1991, have little probatlve value
ON ISSUES OF CREDIBILITY
We accept the Union's submission that "the trter of fact should be cauttous
about judglng the credibility of a witness solely on the basis of personal
demeanour or appearance of sincerity in that Wttnesses style of giving
evtdence " Farvna v. Chornv supra We agree that on first impression
Cruickshank presented herself as a very credible witness who was articulate
and gave her evidence in a reserved but direct manner, and that Santos left a
- ~ -
". ~.
106
less favourable lmpreSSlon tn that he often gave exceSSlVe descnptions and
strayed from givtng dtrect answers to questtons put by counsel We agree also
that when the substance of thelr evidence lS examlned the comparison of
credtbtltty tS stgntftcantly less favourable to Cruickshank
The contrast between Crulckshank's style of present1ng her eVldence and the
substance of that eVldence is revealed in her testlmony regardtng her
asslgnment to full-ttme work tn the Admttttng Department On examtnatton,
Crulckshank testifled that she commenced full-tlme hours ln that department tn r
'..
the summer of 1988 This testimony was given ln a very credtble manner On
cross examlnation, she reJected the suggest ton that she dtd not commence full-
tlme work ln Admttttng unt1l a year later, and she dtd so tn a convtnctng
manner She agaln reJected the suggestlon when presented wlth a performance
appralsal (Exhtbtt 19) that tdenttfted the date of her full-ttme assignment as
May, 1989, offering the explanatton that she commenced worklng full-ttme hours
there at the earlier date, but was not permanently asslgned full-tlme hours
unt t 1 May, 1989 The staff attendance record (Exhibtt 22) which we recetved
later, after her cross examinat10n, established clearly that she commenced
full-time hours tn Admitting tn the May, 1989, and not tn the summer of 1988
Cruickshank's evidence regarding her work assignment illustrates that her
evtdence may not be as rellable as her style of presenting her evtdence mtght (.;.
lead us to belteve
Cruickshank's recollections of the incidents prtor to July, 1991, were vague
and uncertaln She could not trust her own memory on incldents that happened a
few years ago For the inctdents before July, 1991, Crutckshank dld not
clearly recall the ttme and place, nor did she provide sufficient clear and
conslstent evidence on thelr circumstances and contexts, to establish that
they ln fact happened, or, to justtfy a conclusion that Santos's comments were
harasstng rather than joking, ktddtng or teasing The grtevor tS irreparably
preJudiced by his inability to respond to vague allegations regardtng such
long-ago tnctdents that even the complatnant cannot recall when or where, or
the context or circumstances in WhlCh the alleged comments were made We gi.ve
little wetght to the Employer's evtdence on such vague allegations (
"'-'-'
'.
107
Crutckshank's evtdence on her alleged lncldents was not corroborated by Hart
or any of the other witnesses wtth whom she had. worked Not only could she
not recall the time, place, and Clrcumstances of tnctdents prtor to the one ln
the Admtttlng Room, but also she was unable to recall whtch, lf any, of her
colleagues had been present tn most of those tncidents Cruickshank's eVldence
was that others were present tn the flrst alleged tnctdent but she could not
identlfy them She could not recall if anyone was present at the second one
She satd she dtd not tell anyone about the thlrd one, so presumably no one was
present She testlfied Fatlma Raza worked wlth her the ntght of the fourth
lnctdent, but there is nothtng tn Raza's evtdence to explatn why Crulckshank
went to look for a file that ntght, when it was Raza's normal duty to do so
She said Steve Kerr and a doctor were present tn the ftfth tnctdent, but the
Employer dld not call them as wltnesses to corroborate Crulckshank's eVldence
Regarding the stxth tnctdent, her evtdence was that others were not present
Her evtdence that no one was present durtng the seventh and elahth tncldents
was contradtcted tn cross-examtnation when she conftrmed there was a reltef
nurse present on one of those occastons However, we recetved no corroborating
evtdence She dtd not say whether anyone was present tn the nlnth tncldent
WhlCh she satd on examtnat'lon took place after her conversatlon wtth Dr
Doumant and whtch she contradicted on cross-examtnation
On the tenth inctdent, the only witness was Dr Logan H1S evidence was not
very helpful He had not seen what happened before hts arrlval when he saw her
gett1ng up from the floor as he entered the room A 150_, because he cou 1 d
not recall much of what he saw and heard, he told us he had to rely on Ms
Albrecht to refresh his memory, and also, he called Cruickshank and asked her
to remtnd htm what she had told him the nlght of the incident He testt fled he
could not have seen them through the glass partitions as he walked down the
corridor towards the door
Crutckshank's delay in complaintng about Santos's comments and conduct affects
the crediblllty of her eVldence The constderable time between the alleged
events and the ttme she testified affected her memory of them The quality of
her evtdence 1S not improved by the delays For many lncidents Cruickshank was
'~ ~
108
unable to provIde suffICIent relevant information on the time andlor place,
and the conversational context and ctrcumstances whtch 1S necessary to provtde
convinctng evtdence that the comments were actually made and were harasstng
.
There are many tnconststencies and contradictions in Crutckshank's evtdence
On her fourth allegatton, the basement inctdent, the credibiltty of her
evtdence lS seriously tmpaired by contradtcttons and inconststenctes On
examtnation she testtfted that she had told the Investigator the basement
incident happened in Unit 4, and that she did not tell him she had any doubts r
-
about it Subsequently, after she learned that Santos's testimony wtll be that
the only tIme he had. escorted her for a file retrieval was to UnIt 2, she
became uncertaln about Unit 4, and thus she changed her evtdence to say lt may
have happened in the basement of either Unlt 2 or UnIt 4 On examination she
testified also that she had gone to the basement for files several tlmes
previously and that Santos had escorted her to the basement on one prevtous
occasion On examtnation she could not recall when or where the file
retrievals had taken place, but she was confident that Santos had escorted her
on two occasions, and that the two escorts she had wtth htm had not been to
the same unit, but to two different untts in the basement
On cross-examination, Crui~kshank contradicted herself on how many tlmes she ('
had been to Unit 2-basement wtth Santos She confirmed in cross-examinatlon
that she had been in the tunnels on several occasions, that the first time was
with Santos, and that she had never been to Unit 2-basement prior to the
incident She then contradicted this to say she had been to the basement with
him on a prior occasion Further, she confirmed also that she could not have
gone to Unlt 2 with Santos on both occasions She then changed her mind agatn,
saying she now believed Santos had escorted her to the basement on two
occasions, and each time to the Unit 2 basement On further questioning,
Cruickshank expressed conftdence Santos had escorted her on a previous
occasion to Unlt 2, but she could not remember when or where Her evidence was
confused It may have been to the first floor She confIrmed she did not tell
the Investigator that Santos had escorted her on. more than one occaSlon for a
file retrIeval She could not recall if she had been escorted by other L
p ~
109
securIty offlcers on the other occaSlons, or whether it was Santos on all of
the several occaSIons she satd she had been escorted to the basement
When Crutckshank was told that Santos wtll testtfy he had never been to Unlt 4
basement wtth her, she replied she nelther agreed nor disagreed wtth htm on
that, and protested she had no need to remember when, where, and wtth whom,
she would have gone to retrieve a ftle on that parttcular nlght, even though
it was an infrequent and unusual event Cruickshank sald lt was dIfflcult to
remember exactly what happened because it was so long ago, and because "I had
no intention of reporting it at the tlme"
She explained her uncertatnty about whether it happened in the basement of 2
or 4 because there was nothtng in her mlnd "to stand out as mark1ng a
difference between 2 or 4" We ftnd this explanatton incredtble The panel had
been taken on a Vlew of the slte and we acceDt as credIble Santos's testimony
that it is verv difficult to understand how Cruickshank or anvone else could
DOSSlbly have been confused between the two file rooms. in U-2 and U-4. when
thev are so very dtfferent.
The credibility of Cruickshank's evidence on the basement inctdent is affected
also by her fallure to explain why Santos was required to escort her in search
for a pattent's file, when, as she testtfied, the night clerk, Fattma Raza,
was worklng the same Shlft Several of the Employer's wltnesses, partIcularly
Gtsela Albrecht, FatIma Raza, Vtta Clarke, and Ted Cyfko confIrmed that it 15
the duty of the ntght clerk to retrIeve pat1ent flles, accompanled by a
security escort, and that the night nurse would go in search of a patient ftle
only in the unusual and exceptional circumstances, when neither the night
clerk nor the nurse coordinator are available Neither Raza, the night nurse,
nor Cyfko, the nurse coordinator, in their testimony, offered any explanatlon
why one of them had not gone in search of the file, on thts parttcular
occasion, rather than Cruickshank Nor did Cruickshank offer any explanatton
why she went for the file when it was Raza's duty to do so {Cyfko and Raza
were not examlned or cross-examined on thts question They were called by the
Employer to testtfy before Cruickshank}
'i... :: ,,',
110
On the basement incldent, we prefer the eVldence of Santos Crulckshank's
evtdence tS so full of inconststenctes and contradlcttOns that tt can hardly
be gtven much welght We ftnd the Employer falled to produce the requlred
clear, cogent and convincing evtdence, on the balance of probabiltties, to
establ1sh proof of thts allegation
We have come to the same concluston on the the bedroom incidentsiseventh and
e1ahth alleaations} On cross-exam1nation Cruickshank dtsclosed signlficant
dlfferences between her eVldence on examtnatton and what she told Yetman, the (-
Investtgator She confirmed she had not told Yetman that Santos had grabbed
her or tried to do so ln etther of the two bedroom inctdents, which dtffers
from her evtdence tn chtef, which was that he 'grabbed her' tn her seventh
alleaation and that he had 'trted to grab her' ln her elahth alleaatlon.
Furthermore, on cross-examtnatton she conftrmed what she had satd tn chlef,
that no rellef nurse was present at the tlme of the two lncldents, and she
denied telltng Yetman a relief nurse was there Then, on further questiontng,
she contradicted her earller eVldence. She adm1tted she had told Yetman a
relief nurse was there when she found Santos lying on the bed [seventh
alleaatton] She then attempted to clarify the confusion by telling us about a
thtrd bedroom inctdent where she belteved a reltef nurse mtght have been
present She confirmed that she had not previously reported such a th1rd
bedroom inctdent to anyone, netther to the Investigator, nor to us (
She agr.eed she had told the Investigator that, for one of the bedroom
incidents, when she came to the door tt was open, and that when she looked in
and told Santos "I'm not comtng in unhl you leave", he left She agreed she
dld not tell the Investigator that Santos had grabbed her or trled to do so tn
e1ther of the two incldents which she had reported to htm Prevtously, she
told both the Investtgator and the Board about only one tncident where Santos
was already lying on the bed when she arrived and she asked him to leave and
he dtd On cross-examtnatton she sa1d there were two such incidents, and that
he had made no attempt to touch her in either one of them Thiscontradtcts
her eVldence in chief Cruickshank confirmed she told the Invest,gator there
was only one tlme she had found Santos lying there, and that 1t was 1n the t__ I
I
..~\ tt ..
111
second bedroom tnctdent However, ln her eVldence in chlef she told us that
thts was what happened tn the flrst bedroom inctdent
Cruickshank conflrmed that she dtd not tell the Investtgator that Santos had
trted to grab her tn either of the two tncidents She agreed that accordtng to
the Investlgator's notes the only incident where Santos was already tn the
room was the only tIme she found htm already lYIng on the bed The cross-
examinatton established that her evidence regardtng the two bedroom lnCldents
is contradlctory and differs Stgnl ftcantly from what she told the
Investtgator
************************
There are signlficant stmilarttles as well as differences tn the verSlons
described by Santos and Cruickshank on the Admittina Room tnctdent Both
versions agree that it happened on a Friday ntght shtft when a ntght clerk was
not on duty, and that they were alone at the time, after mldnight, not long
after Cyfko had left the Admitting area, and at a time when the duty doctor
was not present
Both verstons are consistent wtth the vtew that the tncident was preceded by
some verbal banter, but neither one can agree on what the other one had satd
I Cru1ckshank said Santos commented on her losing weight and her breastsgetttng
\
smaller Santos dented this He claimed she provoked hts reactIon WIth her
comment that he was all talk She denied saYlng thts Her version 1S that when
she got up from her desk, walked toward the door, and put her hand on the
door knob, he came behind her and grabbed her around the walst~ and ~t the
same time leaned hts shoulder agalnst the door, so that she was unable to get
out Hts version of how the incident started was not significantly dtfferent
than this A signl ficant difference in the two versions is that he sald he
held her llahtly on the waist, Just above her hips, while her verston is that
he held her tiahtlv wtth both hands on her watst Our lmpression is that he
held her more tightly than he thought, but not so tightly as she thought
~ - -- -- ---.---
~---
vJ,-....
.~; it ..." I
I
112
We ftnd a slgnlftcant lnconslstency between the complainant's oral descr1pttOn
of the July 19th inctdent on examtnatton and the demonstratton of the event In
cross-examlnat1on The demonstratlon dtffered signif1cantly from what the
Wttness descrtbed ln examtnatlon In her unassisted deSCrtptlon of the
incident, she had said nothing about Santos touchtng or trying to fondle her
breasts Also, Dr Logan, the only witness to thlS incident, who arrived just
as she was gettlng off the floor, confirmed that she d1d not say anythtng to
htm about Santos ktsSlngher or fondllng her breasts Thus, the demonstratIon
was InconsIstent not only with her own prior description of the event which {'
she gave in evidence, lt was inconststent also with the descripttons which she . ~ ~
gave Dr Logan on the night of the event (see above, p 37), and whtch she gave
her head nurse, Vita Clarke, some days after the event (see above, p 25)
The demonstration happened so qU1ckly we dtd not see clearly how or when her
hands moved to the breasts Although each of the three panel members has a
different view of thts demonstratton in which Ms Qutck participated, actlng
in the role of Cruickshank, we have come to the conclusion that it illustrated
how Santos's hands might have touched the breasts tnadvertently as she
struggled to break away from h1S grip
We reiect the Emolover's submission that Cruickshank had been traumatized bv
Santos's sexual assault in that lnctdent. Her own evtdence, as corroborated (
by Dr Logan, a psychiatrlst, does not indicate the presence of a trauma or a
sexual assault She testified she had continued working the remainder of her
ntght shIft, Just as if nothing serious had happened First, if it had been a
traumatic expertence, she may not have been able to do that The incIdent
happened not long after the night shift began Secondly, the fact that she
went on with her job as though nothing had happened could be consistent wtth
the fact that nothing serious did happen Furthermore, if Dr Logan believed
there had been a sexual assault, we believe he would have reported it
Dr Logan's testimony was that Cruickshank told him only that Santos had
grabbed her and that in her struggle to get away she had fallen
"I don't recall her saying anything about hlm kissing or fondling her"
Dr logan testified that although he had suspected a sexual assault, he
actually did not see tt and he dId not recall Cruickshank saying anythtng to (
~
-~-
t'\ If. '.
113 I
I
I
that effect His eVldence lS consistent with Santos's verSlon of the event as I
playful or frtendly banter, and Wt thout sexual tnterests or tntenttons It tS
consistent also wlth Cruickshank's verSlon She dtd not descrlbe the event as
a sexual attack or as an attempt by Santos to seek sexual gratlftcatlon
Rather, she descrlbed the 1nctdent as more of hts unwanted sexual Joklng and
banter But on thtsoccaston. she made clear to htm that she was unoleasantlv
surorised when he arabbed and held her bv her waist. and that she was not at
all amused bv these antics WhlCh had dtsturbed and uoset her.
On cross examlnattOn Santos sald he belteved Cruickshank had not antictpated
his react ton to her remarks, when he put h\s hands on her walst He sOld she
was surprtsed by lt and that he dtd not hold her very long before he let go
She lost her balance, stumbled very suddenly, and fell forward to the floor
It all happened very qUlckly She very llkely thought he was holdlng her more
ttghtly than he actually dld, just at the tnstant when she broke away He let
go of her as suddenly as he had grabbed her This ts not inconststent w1th
Cruickshank's verSlon
Santos conflrmed he never dated her, never soclal1zed w1th her outs\de of
work, and he never touched her by surprtse before, although they mlght have
hugged each other when they celebrated New Year's Eve or Chrlstmas Eve, at
work He agreed that "she dld not lnvite hlm tn any way to touch her", but
nevertheless he belleved it was not tnappropriate tn those circumstances
because it was a spontaneous action which could not have been interpreted as a
sexual come-on tn the context of the kind of relationship he had wtth her He
felt confident that Cruickshank would understand and accept him as a fr1end
who was Just joklng around in his usual way, wtthout any sexual lntentlons
We do not characterize Santos's conduct as an attemot to seek sexual
aratiftcatlon. In our judgment, tn vtew of the context and circumstances of
the inctdent, Santos's conduct tS more appropriately characterized as
horseplay that had gone too far, beyond the bounds of proprtety He was
mlstaken in his judgment that his spontaneous response would be acceptable to
her and taken in Jest It obviously was not
,~...
,~ ..... v ._'
114
DECISION ON SEXUAL HARASSMENT
!
The onus is on the Employer to prove both [lJ that the alleged sexual comments
and conduct had actually happened and [2J that they comprised a course of
! vexattous comment or conduct which tS sexually harasstng It should be noted
! that the law and the Collective Agreement forbid sexual harassment They do
,
I
; not forbtd dtrty jokes, sex-related discussions, or harmless sexual joking and
i bantertng The collecttve agreement seeks to eradtcate sexual harassment from t"""'"
! the workplace It does not alm to turn workplaces such as this hospital into t-
dreary, sexless and humourless envtronments
! We must ftnd the meaning of Santos's words and acttons ln the context of the.
Clrcumstances ln Wh1Ch they occurred Particularly relevant for such context
! is the nature of their relattonshtp Crutckshank and Santos concur ln their
i
I evtdence that they had a friendly, non-sexual relattonship at work whtch dtd
I
not extend to a social relattonship beyond the workplace
Santos testtfied that their relationship included sexual joktng and banterlng
I Crulckshank's evtdence is that she regarded many of hlS remarks as
I
1 unacceptable, but she never told him so Before the Admitting Room tncident,
I she never told htm she was bothered by any of hts comments, and she never told
C
hlm to stop anything which had bothered her She never complai~ed to her
supervtsor, not until long after that last lncldent Cruickshank's silence
affects the credlbility of her evidence regard1ng the occurence of those
tncidents Her failures on each occasion to tell Santos his Jokes and banter
I were unwanted, and her much delayed reactions to them, reduce the cred1btlity
I of her claim that she was harassed by hlm
\
I
In conclusion, for the reasons stated above, we find that the Employer failed
I to produce the necessary clear, cogent and convincing evidence to prove, on
,
the balance of probabilittes, that Santos had sexually harassed Cruickshank ln
respect to the tncldents which had occurred orior to the Admittina Room
incident of Julv. 1991.
~
~ ~
115
In resoect to the Admltttna Room incident, we ftnd Santos acted lmproperly He
crossed the boundary between frtendly horseplay and harassment when he grabbed
Crulckshank by surprtse and held her agatnst her wlll, however brlefly or
spontaneously that may have been Santos erred in hts Judgment He should have
known his conduct was inappropriate and unwanted, given the nature of their
frtendshtp Thts mtsconduct, in our judgment, tS not sufftC1ent, however, to
establlsh Just cause for Santos's dlSmtssal The Employer has falled to prove
that it had Just and reasonable cause for his dismissal
I
Considerlng that thlS was the first proven lncldent, that Santos stopped
promptly ln response to the complainant's request, and that he dtd not
subsequently attempt to engage ln sexual Joklng and banter, we have declded
that the aoorooriate oenaltv tS a discioltnarv susoenSlon of three davs
without oav In arrtvtng at thlS decision, we consldered the cases relied upon
by counsel, and we applted the doctrines whtch are ftrmly establtshed tn
G S B jurisprudence the principles of progresslve and remedtal d1sclpllne,
and the prtnciple that the severity of the dtscipllne should reflect the
serlousness of the offence We are confldent that the three-day suspenSlon lS
more than sufftcient to be remedial It also sends the appropriate message to
dIscourage such unacceptable behaviour ln the workplace
I
There is nothing in the evtdence whtch would lead us to belteve that Santos's
return to work would in any way contaminate the work envtronment or represent
a threat for Cruickshank or others
It tS noted that the three-day suspenston tS not tnconsistent wtth standards
of dlscipline applied by the Employer in respect to more serious offenses of
sexual harassment committed by managerial personnel in the same Ministry, as
tndicated by the G S B declsions relied upon by the Union in tts ftnal
argument rCourtenev GSB 912/88 (Wtlson), and Anderson GSB 3842/92 (Stewart)]
After revtewing the deciston in Courtenev, whtch found Wllliam Fawcett, a
manager tn the Mintstry of Health, had sexually harassed a subordinate female
employee, the Employer determined it was appropriate and sufftctent to wrtte
Fawcett a non-dlSCtplinary letter of counselllng [Anderson, page 12J
~
0; j...). .iT
116
Subsequently, after acceptlng an lnvestigator's flndings that Fawcett (the
same manager) had sexually harassed Anderson (a new and dtfferent grievor) as
well as other subordtnate female employees, the Employer determined that a
ten-day suspenston was appropriate [Anderson, page 22-25J Santos, unltke
Fawcett, was not tn a pos~tlon of power or authority His mlsconduct was less
sertous than Fawcett's misconduct Fawcett had abused his managenal powers
In our view, managers must be held to a higher standard of dlSctpltne,
reflecttng an exemplary standard of 'conduct tn the workplace
r:
DECISION ON THE DELAYS
The Unton submits that thedlsmlssal should be set astde, tf for no other
reasons, on the grounds that the delays were undue and unreasonable, between
the ttme the allegations of the complatnant against the grlevor were first
brought to the attentton of the Employer, on or about October 9, 1991, and the
time the Employer dismtssed Santos on March 22, 1992 The Unlon SUbmlts that
the grounds for settlng astde the dismissal are similar to those in the
followtng cases on whtch it relIes Re Borouah of North York (1979), 20 LAC
(2d) 289, Re Brunswick Bottlina Ltd. (1984), 16 LAC (3d) 249, and Re
Vancouver Shtoyards Ltd. (1988), 34 LAC (3d) 412
We agree We have co~stdered and rejected the Employer's reply to thts Union (
submtsston The fact that it was not presented as a preliminary or procedural
issue when the hearings commenced does not preclude the Un10n from presenting
the issue in its ftnal arguments on the basis of men t The factual evidence
necessary to support the UnIon's submission on this issue was adduced by the
Employer The facts of the delays, as well as the loglcal implications of
those delays upon the merits of the Employer's dismissal actIon, were revealed
and clarifted as the Employer's evidence unfolded through the prolonged
hearings Thus, the Employer's witnesses provided the essential evidence on
whtch the Unton based its submi.ssion to quash the dismissal The Union is not
precluded from advancing legal arguments i.n its final submissions that may not
have been preci.sely formulated at earller stages of the dispute resolution
process f
'----
.;; -.1, ;.
~
117
The factual basts of a grievor's clatm of unjust d1SCtpllne or dtSmlssal
evolves as the process unfolds Although the gravamen, or the fundamental
nature of the grlevance itself, may not be changed, the process by WhlCh the
facts unfold may lead the Unton to rely on facts of whtch tt was not
completely aware at the earlier stages of the grievancelarbltratlon process
Thus, the Unton may present tn tts ftnal submtsstons at arbttratton legal
arguments whtch may not have been clearly and precisely formulated at the
earller stages This may be an inevttable result where the Employer has not
fully disclosed, prtor to the hearlngs, all of the relevant factual evtdence
which tS revealed through the examtnatlon and cross examtnatlon of lts
wltnesses, and upon WhlCh the Unlon may legltlmately formulate an approprtate
defence [See Speare GSB 113/91 (Gorsky), and Rettsma GSB 93/89 (McCamus)J
Sect10n 27 10 3 2 of the Collectlve Agreement suspends the ttme limlts of the
grievance procedure durtng the tnvestigation of a sexual harassment complalnt
And Sectton 27 10 3 1 states "the time limtts set out tn Sectlon 27 2 1 do
not apply to complaints under this Article provided that the cbmplatnt lS made
wtthtn a reasonable ttme of the conduct complalned of, havtng regard to all
the ctrcumstances"
The collectlve aareement ln Arttcle 27 as a whole expresses the mutual
understandina and destre of the part1es to avold unreasonable and undue delavs
ln confrontlna and resolvlna alleaations of harassment The Employer does not
have the rlght to delay unduly or unreasonably the commencement and/or the
completton of an investigatton wtthout regard for the consequences of such
delays upon the leglttmate interests of the complainant and the grievor The
suspension of the time Ilmits for the processing of complaints or grlevances
in no way bestows upon the Employer the right to unduly and unreasonably delay
an lnvestigation and thereby to delay taking a dlscipllnary actlon Thus. we
ftnd that the collective aareement aives the ar1evor a substantlve riaht to a
promDt investlgationand determination of the allegatlons made aaalnst hlm.
without undue or unreasonable delav. The EmDlover does not have the rlaht to
postpone the determinatlon of those alleaations undulv or unreasonablv.
-- - -- -
., >t" .(.. a. ~
118
Our declslon lS to quash the dlSCtphnary actlon agalnst the grtevor on the
grounds of the Employer's undue and unreasonable delays tn d1smlsStng Santos
long after the complatnant had brought her allegattons to its attention by her
letter of October 9, 1991 [Exhtbit 8J, and on the further grounds of the undue
and unreasonable delay in dismlSStng Santos after the tnvest1gation was
completed On October 21 Santos was suspended pendtng an invest1gatIon of
Crulckshank's allegattons On November 11th Santos successfully grteved the
suspenston [Exhiblt 31J He was retnstated wlth back pay for the period of his
suspenSlon to November 15th There is no evtdence that the Employer had (-,
actually investigated the allegations durtng that 25-day suspenSton pertod
Santos grieved aga1n on November 22 [Exhlblt 32J, demanding an impartial
tnvesttgatlon We dtd not receive evtdence on the exact day the investtgatlon
started and ended, but Yetman, the Investlgator, testtfied that lt lasted two
and a half months and started about the end of November Hts evtdence
lndicates that the tnvestigatton was completed no later than mld-February
Santos was not dismlssed untll March 23, 1992, more than fIve month's after
the EmDlover recelved Cruickshank's alleaations tn writing, and more than a
month after the Employer completed the formal tnvestIgation After the
Employer had taken such a long ttme to assess Crutckshank's allegations,
Santos is entttled to assume either that his conduct is condoned or that the (
allegattons can not be substantlated The Employer's fat lure to dectde
promptly the disclpltnary questtons arlStng from the allegations tS
1nexcusable, unconsc1onable, and without Justtficat10n The delays harmed the
complatnant as well as the grievor Their testimony, respectively, disclosed
that the delays contaminated their work envtronments, disrupted their lives,
and caused them much personal patn and suffering The Employer lS condemned
for its indtfference to the harm and pa1n It caused both complainant and
grievor by its fallure to respond promptly with an lnvestigatton and decislon
on the complatnant's allegattons
Our deCtslon to quash the dlSCtplinary actton ftnds support in the cases
relIed upon by UnIon counsel In Borouah of North York arbitrator Schiff says
"Between December 20th and the date of the dtscharge some seven weeks elapsed {
~"-
-.
.., .. " i!
119
An employer may justly delay imposing dlscipllne for a reasonable tlme after
the event---perhaps a few days-- tn order to reach a wise conclusion about the
approprtate penalty But beyond that, Justtfying the employee's concluslon
that his conduct tS condoned, bars levy of any penalty Re Re1mer Exoress
Ltnes Ltd and Teamsters Unton, Local 880 (1958), 8L A C 341 (Schwenger)
Here the delay after December 20th was much longer"
Later ln hts award arbitrator SChlff states that "an employer lS entltled to a
reasonable period of time to assess an appropriate penalty" and that once the
reasonable period has passed the employee is entitled to assume that the
offence has been forgtven " He concludes that "the result of the delavs
demonstrates the need for an emolover to exerClse ltS resoonslbllitv ln a
collectlve baraalnina relattonshio by actlna exoedtttously to levy that
measure of disclollne warranted ln the liaht of arbltral aUldellnes. The
borough's representatlYeS may, tt ts true, decide wrongly when they act But a
wrong dectston can be corrected ln pre-arbltration grievance procedures or, lf
not, by an arbttrator A decision undulv delaved cannot be corrected at all.
it is slmolv invalid." [Our emphastsJ
In Re Brunswick Bottlina Ltd. arbitrator Iwanicki endorses arbitrator Shiff's
deC1Ston and applies lt ln hts decislon that the dlSCtpltne tmposed by the
employer was "untimely and therefore tnvalid"
In Re Vancouver Shtovards Ltd. arbitrator Ready decided
" tf the company determlned to cancel the grlevor's recall rtghts by
declartng htm unsuttable for recall as a result of hts protest picketing
acti Vt ttes , it was incumbent on the company to do so at or near the tlme
of the causal inctdent so that the grievor and the unton would have had an
opportunity to challenge that decision under the grievance procedure in a
ttme ly manner "
We likewise flnd, for the reasons glven herein, that the Employer's deciston
to dismiss Santos was unduly delayed and cannot be corrected It tS simply
lnvaltd
------ ----
'* .. ... ~
120
For the reasons gtven hereln, the grtevance succeeds Accordlngly, the grlevor
shall be forthwtth reinstated to hts posttton wtthout loss of sentority, and
he shall be fully compensated for all lost wages and beneflts, w1th lnterest
calculated tn accordance wlth the practices followed by the Ontarto Labour
Relatlons Board We remaln setzed in the event of any difflcultles between the
parties tn the tmplementation of this award
DATED AT DELRAY BEACH, FLORIDA, THIS 3rd DAY OF~"'F-ebruary 1-995. __
-' f
--------------~
HARRY J WAISGLASS, CHAIRPERSON
4/d:
.....~, -
(Addendum to follawU-_______________________
E SEYMOUR, MEMBER
'I Dissent' Dissent to follow
---------------------------
M O'TOOLE, MEMBER
(
i
i,
-~
.
~
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARP DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TElEPHONE/TELEPHONE 1416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACS/MILE/TELECOPIE (416) 326-1396
April 28, 1995
AMENDMENT ~
RE: 974/92 OPSEU (Santos) and The Crown in Right of ontario
(Ministry of Health)
Please attach the enclosed Dissent of Mr. O'Toole, the Addendum of
Mr. Seymour, and the Reply of Mr. waisglass to your copy of the
above noted Decision. ."
Yours truly, -
Z~vfl
Registrar .
LS/ dbg
".~c,' Encl.
-:-''',-
;
-
\ \ (
'.;;.- 1'-, ~
SANTOS, 974/92
DISSENT OF EMPLOYER MEMBER
I have carefully reviewed the decision of the majority and must respectfully dissent
from their decision to dismiss the employer's motion to re-open its case and from
their decision to allow the grievance. My reasons for so doing are set out below I ~
do, however, concur with their decision to dismiss the union's motion for non-suit.
Subject to what I hereinafter specifically take exception to or supplement, the
majority's summary of the evidence is substantially correct.
Unless otherwise indicated, all page references are to the decision of the majority
The issue that arises in this case is whether the grievor sexually harassed
Cruickshank.
I agree with the majority's definition of sexual harassment and, in particular, their
elaboration of "the reasonable person" branch of the test: "would a reasonable
person in the same circumstances have known that the behaviour was
unwelcome" I also agree with their formulation of "where the line is drawn"
"when the joking becomes hurtful, humiliating and demeaning to someone, and
yet persists even after such harmful consequences are obvious to a reasonable
person," Stated differently, the line is crossed when the elements of choice and
mutuality are not present.
Certain comments of the majority elsewhere in their decision suggest that they may
not fully grasp the significance of the last-mentioned two elements. For example, at
page 114 they state that the law does "not forbid dirty jokes, sex-related discussions,
or harmless sexual joking and bantering" In fact, the law does forbid the above
behaviours if they are offensive to the person to whom they are directed. The
majority go on to state that the law "does not aim to turn workplaces such as this
mental hospital into dreary, sexless and humourless environments" However, if
1
-~
\ (
the sexual bantering or humour is unwanted by a person, it is most certainly the
aim of the law to eradicate it from the workplace.
The determination of the question whether Santos sexually harassed Cruickshank
requires a consideration of three sub-issues:
(a) whether the conduct attributed to Santos in fact occurred,
(b) whether it was unwelcome;
(c) if so, whether Santos knew or reasonably should have known "it was
f unwelcome
I ~.
I A number of general background factors are relevant to the determination of the
t
abo-\re issues.
Thel first is the general personality of each of the two players involved. These are
I
acc~rately described by the majority at page 98. I would only add that, while
Cru:ickshank may not have been regarded as "a humourless prude", several
witrtesses indicated that she was not the type of person to engage .in sexual banter or
I
joking. For example, Dr Doumani testified that "knowing her as I do, I would be
surPrised if she would engage in sexual banter, that kind of conversation." (page 35)
Eve~ the grievor at one point stated that he would joke very little with Cruickshank
bec~use "it is not in her character to joke very much." (page 86) Ms. Gerardi and
MS.j Raza both indicated that Cruickshank did not engage in sexual banter or joking.
(pages 23 and 24)
!
Anrither relevant background factor is the general nature of the relationship
benlreen Cruickshank and Santos The majority are of the view that both had a
"fri~ndly workplace relationship" (page 98) and I agree that this is an accurate
I
characterization. However, every witness who testified claimed to have at least a
I friendly workplace relationship with Santos. Yet none of these witnesses said that
Santos engaged in sexual banter with them. In fact, most said that Santos didn't do
so. This is in marked contrast to Santos' statement at page 86 that "everybody at
2
\ (
;~'-
Q.S.M.H.C. with few exceptions, 'participate in sexual joking, more or les~." In my
opinion, no particular significance attaches to the fact that Cruickshank and Santos
were workplace friends.
A further relevant background factor is the general tenor of the workplace with
respect to sexual comment and conduct. Santos' evidence was that sexual banter
and joking between nurses and security officers was common in the workplace. The
majority are of the view that several witnesses corroborated the above evidence. ~
(page 100) In my opinion, the majority's view is mistaken. In fact, some witnesses
indicated that sexual banter was not nearly as prevalent between nurses and security
officers as suggested by Santos. For example, Dr Doumani said that she saw the
nurses and security engage in sexual bantering, but not frequently She said that it
was more evident during the day, when lots of staff were around. (page 35) Some
witnesses had not seen Santos engaging in sexual banter One of these was Ms.
Gerardi, who worked two shifts in each cycle with Santos. Although she worked
many shifts with Santos, she never heard him make sexual jokes. (page 23) One
witness, Ms. Raza, the night clerk in Admitting, could not recall if any of the jokes
she had heard were sexual. (page 25) Another witness, Ms. W~lker, when asked to
give an example of sexual bantering involving Santos, described a scenario that was
not really sexual in nature. (page 27) In my view, the appropriate inference to be
drawn from the evidence is that the incidence of sexual banter may have been
frequent on the day shift (and then only between employees with social
relationships outside the workplace) but only very occasional, if at aU, on the night
shift.
The course of conduct attributed to Santos covers a period of several years,
commencing some time in 1989 and ending in July 1991 Cruickshank's and Santos'
versions of what took place between them are, for the most part, conflicting. Thus,
the evaluation of each's credibility is pivotal to the resolution of the issues herein.
I agree with the majority that credibility is to be assessed according to the test set out
by O'Halloran, J A. in Faryna v. Chorny, and reproduced at pages 15 and 16 of the
majority award. I submit, however, that the majority turned their minds to only
that part of the test relating to the personal demeanor of the witness and ignored the
3
1
~ l
other part which states:
"The test must reasonably subject his story to an examination of
consistency with the probabilities that surround the currently existing
conditions. In short, the real test of the truth of the story of a witness
in such a case must be its harmony with the preponderance of the
probabilities which a practical and informed person would readily
recognize as reasonable in that place and in those conditions." ~
I shall illustrate the above submission later
The majority conclude that Cruickshank's evidence is totally lacking in credibility
In my opinion, their analysis is flawed on several grounds.
First, they essentially brush aside all of Cruickshank's evidence relating to the pre-
July 1991 incident on the grounds that it was "vague and uncertain", and because
Cruickshank "did not clearly recall the time and place, nor did she provide sufficient
clear and consistent evidence on their circumstances and context, to establish that
they in fact happened" (page 106) However, the majority do not illustrate their
contention with reference to any particular incident. Many of the incidents, in fact,
are not illustrative of the majority's conclusion. One example is the first incident
where Cruickshank said Santos pulled the top of her blouse and looked down the
front part. The majority do not specify what is vague and uncertain or what is
inconsistent in this evidence nor do they show how any missing details as to context
are necessary for probative value. It is hard to imagine any context where this
would have been inoffensive, save in the ):>edroom. Another example is the fifth
incident where Cruickshank said she had asked Santos to help her with something
and he said "you're too tense, relax, you need to get laid" Presumably what is vague
and uncertain about this evidence is the "something" she needed help with. But
the majority do not indicate how lack of specificity as to this detail detracts from
probative value, especially in view of the fact that Santos not only denied making
the comment but added "I'd never say to her 'you need to get laid'" (page 79)
Another example is the sixth incident where Cruickshank alleged Santos asked "if
he could come home with me and sleep and we would watch soccer" There is
4
( (
nothing vague and uncertain or inconsistent in this evidence. It is hard to imagine
how any missing details as to context are necessary for probative value as such a
comment would rarely, if ever, be appropriate between two workplace friends who
shared a mutual interest in soccer
The majority are also critical of Cruickshank's credibility due to alleged errors or
inconsistencies in her recollection of certain incidents In my opinion, many of
their criticisms are unfair or even petty .~
For example, they are critical of Cruickshank's inability to correctly recall the date of
her assignment to full time work in the Admitting Department. Cruickshank's
evidence was that she commenced full time hours in Admitting in the summer of
1988. On cross-examination, she rejected the suggestion that she commenced full
time hours in the summer of 1989 A review of Exhibit 21 and Exhibit 22 shows that
Ms. Cruickshank did commence working full shifts on Admitting in 1988 and only
commenced working exclusively in Admitting in August, 1989 It appears to me
that this is an issue of imprecise terminology as opposed to error Moreover, the
issue is not significant to any substantial matter in dispute.
The majority are especially critical of Cruickshank's confusion as to whether the
fourth incident, the basement incident,. occurred in Unit 4 or Unit 2. While the
matter of the location of the incident is of some importance, there is a simple
explanation for Cruickshank's confusion. She had done basement file retrievals on
only three or four occasions a year since working on Admitting Moreover, on these
occasions, she had never gone via the basement route. She therefore had very little
opportunity to acquire any degree of familiarity with the environmental details of
the basement. Santos, on the other hand, said he had done over one thousand
escorts for file retrievals in his eleven years of service as a security officer (page 76)
He thus had a far greater opportunity than Cruickshank to become familiar with the
basements.
Notwithstanding Cruickshank's confusion as to the location of the basement
assault, she remained consistent as to its critical features, namely, that it occurred
after she and Santos left the file room, that he shoved her against a table, and then
5
~
( (
fondled her breasts. She described the incident as one in which she feared she might
be raped. Dr Borins' evidence was that confusion and self-doubt are all
characteristics quite common in the case of assault by an acquaintance, but much less
so in the case of assault by a stranger In my opinion, the confusion over the unit is
a .minor inconsistency; it is consistent with a fading memory and inconsistent with
fabrication. If the incident was fabricated, I submit its details would have been
presented clearly and consistently
.~
The majority prefer Santos' evidence because he clearly recalled the location of the
retrieval. I find the clarity of Santos' recollection peculiar for a number of reasons. /.
First, it took place years ago. Second, it was one among thousands of uneventful
escorts he had done. Third, Santos had a complete lack of memory respecting his
discussions with Mr Yetman. All these factors, in my opinion, cast grave doubt on
the veracity of Santos' account.
The majority also criticize Cruickshank for failing to explain why she went on the
file retrieval instead of the night clerk, Raza. While it is true that file retrievals
were usually done by the night clerk, or if unavailable, the nurse co-ordinator, it is
also true that nurses did, on occasion, do file retrievals. What required Cruickshank
to go on this particular retrieval is, surely, a matter of minor administrative detail.
It is understandable, after the passage of a number of years, that such a detail might
slip her mind.
Having regard to the foregoing, it is my view that Cruickshank's version of the
basement assault incident is more believable than Santos' Moreover, contrasting
their accounts and motivation toUe, I am satisfied that the basement assault did
occur
The majority are also critical of Cruickshank for being either confused or
contradictory about the number of bedroom incidents, Santos' conduct during such
incidents, and whether or not a relief nurse was present. While these matters are
not insignificant, it is understandable that Cruickshank might get confused about
them after the passage of so many years. That is no more than is to be expected from
an honest witness giving her recollections at different points in time. Moreover,
6
l
\ (
confusion is inconsistent with fabrication. If the incidents were fabricated by
Cruickshank, there is every reason to believe that she would have presented their
details clearly and consistently
The excessive preoccupation of the majority with Cruickshank's evidence has
caused them to ignore altogether the many inconsistencies in Santos' testimony
The following are examples.
~
Concerning Cruickshank's personality and the nature of his relationship with her,
Santos, in chief, said that Cruickshank was "shy and passive with certain people, but
not with me. She was not shy and passive around certain people she was
comfortable with, and she was comfortable around me, " (page 79) However, in
cross-examination, Santos said he would joke very little with Cruickshank because "
it is not in her character to joke very much," (pages 86 and 87) He also said" we
.weren't often together, only about two shifts a month, and even then we had our
jobs to do. We couldn't sit around and talk all the time." (page 87) In light of the
latter comment, one is left to wonder how Santos had either the time or
opportunity to.- develop the special relationship with Cruickshank that he described
above
Santos gave evidence in chief regarding his friendly relationship with Ms.
Cruickshank. He described a number of incidents in which she had tucked her arm
in his or put an arm around his shoulder in a friendly gesture. Then, when asked if
he had sexually assaulted Cruickshank, Santos responded by stating vigorously that
he "never touched that lady" (page 78) The employer member of the panel
enquired about this contradiction in his statements and he provided the explanation
that his denial of touching Cruickshank was not denial of touching her in any way
but only of touching her in a sexual manner
This explanation, however, does not appear to fit another situation in which Santos
denied any physical contact with Cruickshank. This occurred in the context of his
discussion with Mr Yetman regarding the allegation of the sexual assault in the
basement. Beginning on page 14 (first set of notes), Santos denies any physical
contact with Cruickshank during the file retrieval. The notes are as follows:
7
-~~ -
\ t..
''We didn't even talk. I don't go around grabbing people, especially
women. I have a reputation as a gentleman. I don't have physical
contact with others except friends. And she and I are not friends." ,f!
On the next page the notes continue:
"One time I came out of my locker room, she came out of her locker ~
room. She intertwined her arm in mine, 1991, May? But this time
there was nothing. I don't even remember us saying anything."
In the above excerpts, it is clear that in denying physical contact, Santos is denying
any type of contact, casual or otherwise. This interpretation is consistent with the
text that follows on page 15 In addition, his description in the notes directly
contradicts his oral description to the panel respecting the one and only file escort
with Ms. Cruickshank.
Santos, in chief, described his relationship with Cruickshank as a friendly
rela tionshi p Yet he stated to Wayne Yetman, in the above excerpt, that
Cruickshank was not his friend Santos explained that Cruickshank was a
workplace friend but not a social friend outside of the workplace. Even if this
I explanation is accepted at face value, it calls into question the candor and care with
I which Santos gave his evidence in general. For example, it casts doubt on the
I
I special relationship Santos claimed to have developed with Cruickshank.
In assess~p~ues of credibility, the majority do not give adequate weight to the
evidence apparently impartial witnesses. They appear to have focused entirely on
a comparison between the evidence of Santos and Cruickshank, without
considering the possibly self-serving nature of such evidence. Of the two, Santos
had the most compelling motive to lie; after all, his job was on the line. Yet the
majority do not even make a token reference to this in their analysis of credibility
issues. In my opinion, the evidence of witnesses with no obvious interest in the
outcome of the proceedings, should be preferred to that of Santos or Cruickshank
where there are inconsistencies between their evidence. There were numerous
8
l \.
,
such witnesses. The most significant of these is Robyn Hart, as she worked in the
Admitting Department on many of the night shifts on which Cruickshank and
Santos worked and as she was on friendly terms with both. She therefore had the
,
opportunity to closely observe the way Cruickshank and Santos interacted. Her
evidence is supportive of Cruickshank on a number of key factual issues. These will
be explored in detail later
Having regard to the foregoing, I am satisfied that the pre-July 1991 pattern of -~
conduct attributed to the grievor in fact occurred.
I will now turn to the issue of whether Santos' conduct toward Cruickshank was
welcome or unwelcome. The majority conclude that it was welcome (except for the
July 19 incident) on several grounds. In my opinion, their analysis is seriously
flawed.
The first ground relied on by the majority is their finding that Santos' evidence that
Cruickshank participated with him in sexual banter is credible. In my opinion, it is
not credible for a number of reasons.
First, it is inconsistent with Cruickshank's general personality as described by her
colleagues, especially Dr Doumani. (see page 2 supra) Their evidence
demonstrates that Cruickshank was not the sort of person who would welcome
sexual banter or participate in it.
Second, Dr Doumani testified that sexual banter occurred mainly on the day shift
between employees who had social relationships outside the workplace. Santos and
Cruickshank worked together on the night shift. Moreover, Santos was emphatic
that he did not socialize with Cruickshank away from work.
Third, few night shift employees ever observed Santos engage in sexual banter and
of those who had, none had observed Cruickshank participating with him in sexual
banter
Fourth, those. employees who did observe the grievor engage in sexual banter gave
9
\
p
\ {
I
examples that were not really sexual in nature. (For example, see page 27 re
Margaret Walker) The majority "believe that Cruickshank engaged in sexual banter
with Santos in a very quiet, low-key and' passive manner" (page 101) However,
there is no evidence to support their ''belief'' In fact, it is contradicted by Santos'
evidence that Cruickshank was not shy or passive around him. (page 79)
The second ground relied on by the majority for their finding that Santos' conduct
was welcome was that "there is nothing in Cruickshank's testimony to suggest that ~
she ever told Santos, by her words or actions, that those sexual solicitations or
advances were unwanted, or that she felt personally hurt or threatened by anything
he had said or done." (page 102) In my opinion, this is a gross mischaracterization
of Cruickshank's evidence. Her evidence shows that on a number of occasions,
Cruickshank reacted to Santos' behaviour with eittter words or conduct that clearly
communicated her dislike for his behaviour
In the first incident, she called Santos "a pervert" and walked away The use of such
a pjorative term surely carries the connotation of a negative reaction by her
In the fourth incident, she told Santos that if she reported the behaviour he could
lose his job Her suggestion that such behaviour could have such an adverse
consequence surely implies that she objected to it.
After the seventh and eighth incidents, Cruickshank told Santos she would tell his
fiancee if he did not stop such pranks. The giving of such a warning clearly
indicated that she wanted Santos' behaviour to stop
In March or April 1991, Cruickshank pointed out to Santos an article on sexual
harassment in a staff newsletter When asked if her tone was serious or joking, she
answered "serious" According to her, Santos took her comment to be a joke. Hart's
evidence was that she overheard a similar or the same comment by Cruickshank.
She thought Cruickshank was serious and she believed that Santos treated it as a
joke. Hart gave evidence of additional sexual comment made by Santos to
Cruickshank which Hart concluded Cruickshank found offensive. Most comments
related to lingerie, creative sex, having children together and an offer to show Ms.
10
\ (
Cruickshank his penis.
The majority appeared to dismiss all the above reactions of Cruickshank as
ineffective communications. In so doing, they appiy a standard that is far too
rigorous and does not take account of the realities of interpersonal communication
in the workplace An employee who is an object of sexual harassment is not
expected to issue the verbal equivalent of a cease-and-desist order As stated in Re
Ottawa Board of Education, 5 L.A.C. (4th) 171 at page 180, "It should enot be necessary ,~
for the female to verbalize her objections to unwanted sexual advances." What is
required is that the individual effectively communicate that the harassing
behaviour is objectionable. No particular language or formula is required. The
communication may be by words, conduct or body language. It may be indirect or
even subtle so long as it is effective. The sufficiency of the communication must be
judged according to the individual facts and circumstances of each case. The criteria
to be considered would include such variables as the general culture of the work
environment, the general level of education of employees, and the impressions of
other employees concerning the communication. Blunt, even abrasive, language
,
might be appropriate and expected communication for an employee on an
industrial shop floor but would be totally out of place in an environment like the
Admitting Department of a hospital which is staffed by professional employees and
is charged with the care and treatment of mental patients. In such an environment,
one would expect the level of communication to be generally polite and
sophisticated. That is the context in which the effectiveness of Cruickshank's
reactions to Santos' sexual banter must be assessed.
Two night shift employees, Robyn Hart and Helen Gerardi, had the opportunity to
observe Santos engaging in sexual banter with Cruickshank. N ei ther of them
described Cruickshank as enjoying or reciprocating such banter The impression of
these employees is the best gauge of whether Cruickshank's reactions to Santos~
banter were effective in communicating her dislike.
Hart stated that there was a friendly atmosphere between Cruickshank and Santos
except for some sexual comments he would make sometimes. She also stated that
she never heard Cruickshank say anything to Santos about not liking what he said
11
~
( (
except for the time she told him he wasn't showing respect for her "But I could tell.
I sensed when she didn't like it, even if she didn't show it." (page 35)
Helen Gerardi said that, although Cruickshank never told her as much, "it was my
opinion she did not like Santos' joking all the time" She once heard her- say to him
"Oh, you and your jokes" (page 23)
It is clear from the foregoing that two of Cruickshank's peers had no difficulty in -
interpreting her reactions to Santos' sexual banter as negative. It is therefore
reasonable to infer that Santos had no difficulty discerning that his banter was not
wanted. That he avers to the contrary is simply self-serving.
Another ground relied upon by the majority for their conclusion that Santos'
conduct was welcome is their finding that Santos "promptly" let go of Cruickshank
during the tenth incident as soon as she asked him to. While Cruickshank did ask
Santos to let go of her, there is no evidence that this was done promptly or even
voluntarily In fact, Cruickshank's evidence is that she had to "struggle with all
her force" to get away from Santos. (page 46) If Santos had let go promptly when
asked, there would have been no need for Cruickshank to struggle. It was the force
generated by Cruickshank's struggle that forced Santos to let go of her, not
Cruickshank's request that he do so. Thus, contrary to the majority's conclusion
regarding this incident, Santos persisted with conduct that was unwanted.
Another ground relied upon by the majority for their conclusion that Santos'
conduct was welcome is that Santos promptly stopped his sexual bantering and
joking after he was asked to do so by Cruickshank during the tenth incident. There
is no evidence to support the latter finding. Neither Cruickshank's nor Santos'
evidence contained any reference to such a request being made during the above
incident. In fact, the majority make the following statement that implies just the
opposite: "And after the tenth incident, her conduct was such to reassure Santos that
his antics did not affect their friendship, and he heard no protest or complaint from
her about his conduct until several months later" (page 101) It should be noted that
the foregoing statement of the majority conflicts with Santos' comment during
cross-examination that after the tenth incident "I no longer felt comfortable with
12
- --
\ t
her" (page 88)
If Santos did stop his sexual banter and joking after the tenth incident, (which I
dispute), it was, as he said, "not because she had 'asked me to stop" (page 88)
Therefore, it could only have been because of the negative character of
Cruickshank's overall reaction to his conduct, or, to use his language, because of the
way she acted running to the duty doctor in "a weird, bizarre way" (page 88) That
after the tenth incident Cruickshank found it necessary to approach her supervisor ~
and ask if shifts could be scheduled to ensure she did not have to work with Santos,
suggests that Santos did not in fact stop his sexual banter and joking.
Another ground relied upon by the majority for their conclusion that Santos'
conduct was welcome is the fact that Cruickshank delayed for so long in officially
reporting Santos' conduct as harassing. They imply that the evidence does not
support any alternative theory for her official silence In so doing, they are
oblivious to much of the expert evidence tendered by Dr Borins.
Dr Borins' outlined a number of gender-based theories that explain the reluctance of
women to use official grievance procedures when confronted with sexual
harassment. (page 64) Many of them apply to Cruickshank.
Dr Borins suggested that women may not wish to judge or punish the offender
Cruickshank stated that she did not want Santos suspended or fired for his conduct.
Dr Borins also suggested that women are socialized to put the needs of others above
their own. Cruickshank was concerned that if she reported Santos' conduct, it might
adversely affect his relationship with his girlfriend.
Dr Borins said that peer group pressure could inhibit victims from reporting
harassment where the victim believes her complaint will not be supported by her
co-workers. Cruickshank's own explanation for her official silence was that Santos
was very popular and that she feared being alienated from her co-workers if she
made a complaint against him. (page 48) Dr Logan confirmed that Cruickshank
expressed the same fears to him after the tenth incident. (page 38)
13
" (
Dr Borins said traumatic or shock effects often associated with rape, assault or incest
could explain delays in reporting the events. The majority find that there was no
trauma associated with the tenth incident. This finding, however, is inconsistent
with the evidence of both Santos and Cruickshank. Santos said that -after the
incident, Cruickshank ran to the duty doctor in "a weird, bizarre way" (page 88) and
said something like "help me, help me" (page 82) Cruickshank said she was
"confused and mixed up" after the incident (page 47) and also "shaken up" by the ...
events. (page 59) It is true that after the incident Cruickshank worked the
remainder of her shift. But as Dr Borins pointed out, this is a classic scenario
following an assault by a fellow employee. Dr Borins further stated that, although
the victim may appear alright, cognitively she may be experiencing confusion
because of the shock of the assault.
'"":
The majority reject a number of other explanations for Cruickshank's official silence
in addition to those suggested by Dr Borins. They reject the submission that
Cruickshank's silence can be explained as the consequence of her fear of
embarrassment (page 103) They base their rejection on Cruickshank's refusal to
follow a doctor's instructions to put a patient in restraints, which they say indicates
"strength of character" In my view, this is an unfair analogy The situation
described above involved Cruickshank's professional ability as a psychiatric nurse.
It shows strength of character in a professional context. It does not necessarily
indicate strength of character in situations involving social pressures. Indeed, the
majority's own description elsewhere of Cruickshank's character as "quiet, low key
and passive" (page 101) would suggest that she might very well be vulnerable to
such pressures.
The majority essentially conclude that the Admitting Room incident involved
unwanted touching of a non-sexual nature. They base this conclusion on their
finding that there was no contact by Santos with Cruickshank's breasts or, if there
was, it was "inadvertent" This finding is derived from a comparison of
Cruickshank's oral description of the incident in chief and the demonstration of the
incident performed during her cross-examination. In my view, that comparison is
factually erroneous in several respects.
14
\ (
First, the majority state that in her "unassisted" description of the incident in chief
Cruickshank said nothing about Santos touching or trying to fondle her breasts.
While it is true Cruickshank made no express reference to Santos having contact
with her breasts, she made at least one statement that can support such an inference.
Cruickshank stated that Santos was "grabbing her blouse" during the incident. (page
46) Cruickshank's blouse, of course, was covering her breasts. This statement is
therefore quite consistent with Santos having grabbed Cruickshank's bre'asts.Thus ,~
it is unfair to conclude, as the majority do, that Cruickshank's oral description is
inconsistent with the demonstration. The demonstration was simply more specific
as to the part of her blouse on which Santos put his hands.
The majority state that the demonstration illustrated "how Santos' hands might
have touched the breasts inadvertently as she struggled to break away from his
grip" (page 112) In my view, there is no evidentiary support for this statement.
First, while I do not agree with the majority's premise that the "demonstration
happened so quickly we did not see clearly how or when her hands moved to the
breasts" (page 112), if you accept this premise, how can it be that the demonstration
illustrated anything? Presumably, the demonstration revealed no insights into
whether the contact with the breasts was inadvertent or not. .
The fact of the matter is that the demonstration involved a few simple movements,
that it was performed at a speed that made observation easy for persons with normal
powers of observation, and that none of the panel members nor MrColeman
expressed any dissatisfaction at the time with any aspect of the demonstration
including its speed The'speed with which the demonstration was performed was
not one of the "concerns of the Board" put to the parties on October 24, 1994 and set
out at page 17 herein. Nor did Mr Coleman see fit to raise the matter in his final
argument. Nonetheless, the majority now wish to raise it as a concern. In my
opinion, it is unfair to raise the matter now as final argument has been closed and
the employer is, therefore, precluded from dealing with it.
I am surprised by Mr Waisglass' comment that I have "not specified" my views of
the demonstration (page 59) I submit that, notwithstanding his statement to the
15
\ { ,
contrary, the majority are well aware of my views of the demonstration and have
been for some time. After all, we had several ad hoc discussions on the subject
during the course of this case. There were at least two formal executive sessions in
the fall of 1994 where the subject, among others, was discussed. Moreover, on
November 23, 1994 during Mr Coleman's oral argument, I illustrated by means of a
demonstration of my own my views concerning the demonstration involving Ms.
Quick and Ms. Cruickshank.
~
The majority describe the demonstration at page 59 Their description does not
contain sufficient detail to be fully descriptive. The following more adequately
describes what happened during the demonstration.
Quick and Crt,tickshank stood approximately a foot apart. Quick was in
front of Cruickshank with her back to Cruickshank. Cruickshank was
facing Quick. Cruickshank momentarily put her hands on top of
Quick's hips. Then Cruickshank moved her hands up along both sides
of Quick's rib cage and placed them over Quick's breasts while
Cruickshank's elbows were against Quick's hips.
During the demonstration, I had no difficulty in observing how Cruickshank's
hands moved towards Quick's breasts. Moreover, there was nothing inadvertent
about the movement. I am, therefore, at a loss to understand how the majority can
say that they did not see clearly how or when Cruickshank's hands moved to
Quick's breasts.
The majority refer to Cruickshank's "unassisted" description of the incident in chief.
(page 59) This implies that during the demonstration Cruickshank was "assisted" in
some manner That, of course, would have been completely improper In my view,
the issue of the propriety of the demonstration should have been addressed directly,
and not indirectly, by the majority
To fully canvas the issue of the propriety of the demonstration, it is necessary for me
to outline the following chronology of events.
16
\ t.
"
At the commencement of the hearing at which Ms. Quick was originally scheduled
to begin her argument, the Vice-Chair read the following list of "concerns of the
Board" and asked the parties to deal with them in their arguments.
1 "What, if any, express references are there in the complainant's oral
description in chief of the alleged sexual assault in Admitting on the
night of July 19-20 to contact between her breasts and the grievor?
.~
2. During her demonstration of the alleged sexual assault in Admitting
on the night of July 19-20, was the complainant in any way led, or ~"
otherwise improperly assisted, by counsel for the employer into saying
that the grievor was trying to fondle her breasts?
3. What, if any, contradictions are there between the complainant's oral
description in chief of the above alleged sexual assault and her
demonstration of the same alleged sexual assault?
4. Is there anything in the complainant's testimony to establish that she
ever made an effort to clearly communicate to the grievor or to any
person in authority that she found his comments or conduct sexually
harassing prior to the day before she wrote the letter to the head nurse
dated October 9, 1991?
5. Does the complainant's own description in chief of the alleged sexual
assault in Admitting on the night of July 19-20 indicate that the grievor
let go of the complainant promptly as soon as she asked him to stop?"
In response, Ms. Quick said she was taken by surprise and asked for an adjournment
in order to reformulate her argument. This was granted.
On October 24, 1994, Ms. Quick presented written and oral argument. At no time
during the course of her argument did the Vice-Chair challenge her submission that
she did not lead or improperly assist Ms. Cruickshank during the demonstration of
the July 19-20 incident in Admitting.
17
--
On November 23, 1994, Mr Coleman presented written and oral argument. Mr
Coleman's written argument contained a submission that Ms. Quick had
improperly assisted Ms. Cruickshank during the above demonstration but presented
no factual particulars of such improper assistance. I, therefore, asked Mr Coleman
to orally give such particulars. In response, he said that during the demonstration
Ms. Quick's hands came in contact with Ms. Cruickshank's hands and then guided
Ms. Cruickshank's hands to her breasts. .~
Ms. Quick then stated that she had done no such thing. I stated that I had observed
no such thing on the part of Ms. Quick. The Vice-Chair stated that he had observed
such a thing on her part. Mr Seymour read aloud excerpts from motes he made
during .the demonstration and they did not indicate any impropriety by Ms. Quick.
The majority have not made any express comments in their decision but they have,
by implication, raised the issue of the propriety of Ms. Quick's behaviour during the
demonstration. Given that this issue was placed before the parties at the initiation
of the panel, the issue should have been dealt with directly by the majority In my
view, there was no assistance offered by Ms. Quick to Ms. Cruickshank during the
demonstration. Indeed, Ms. Quick was incapable of doing so in that her back was to
Ms. Cruickshank.
It is interesting to note that the majority's inference that there was inadvertent
contact between Santos' hands and Cruickshank's breasts is actually contradicted by
Santos' evidence. Santos was insistent that "the only physical contact was my hands
on her hips" (page 83)
Another factor taken into account by the majority in finding that the tenth incident
involved physical contact of a non-sexual nature was the evidence of Dr Logan. Dr
Logan said he had the clear impression that a sexual assault had taken place.
Notwithstanding that Dr Logan is a psychiatrist and presumably skilled and
experienced in interpreting behaviour and body language, the majority are not
prepared to give any credence to his impression. Their only rationale for doing so is
their belief that if Dr Logan's impression was genuine, he would have "reported" a
18
-
\ (
sexual assault. With respect, this rationale is without merit. There would be no
point in Dr Logan reporting a sexual assault on Cruickshank to either management
or to the police if Cruickshank were not prepared to confirm it. Inde'ed, if
Cruickshank were not prepared to confirm it, Dr Logan might expose himself to
possible criminal or civil liability
In my view, the overwhelming weight of the evidence compels the concluSion that
the tenth incident involved unwanted physical contact of a sexual nature. This is .~
especially $0 having regard to the second branch of the Faryna v. Chomy test. That
requires that the evidence of a witness be scrutinized according to its consistency
with the reasonable probabilities inherent in a given situation. It is my view, for the
reasons hereinafter set out, that Santos' version of the tenth incident cannot
~ withstand such scrutiny
Santos says that he placed his hands lightly on Cruickshank's waist and theorizes
that, either she may have thought he was holding her more tightly than he actually
was at the instant she struggled to break away from him, or, she was surprised by his
touch and stumbled. (page 94)
In my view, neither theory is plausible. The first theory begs the question of why
Cruickshank struggled to get away from him if his grip was light. Surely, there
would have been no need for her to struggle out of a light grip The second theory is
not consistent with Santos' version of the type of relationship he had with
Cruickshank. Santos said he was confident in his friendship with Cruickshank, that
she would understand and accept him as a friend who was just joking around in his
usual way, without any sexual intentions. (pages 94 and 95) If Santos was just joking
around in his usual way, there was no need for Cruickshank to be so surprised by
his iighthearted touch that she would stumble and fall. The fact Cruickshank was
surprised and stumbled would suggest that Santos was not acting in his usual
manner That, in turn, would suggest that horseplay involving physical touch was
not Santos' usual way of behaving around Cruickshank.
The reasonable probabilities all favour Cruickshank's version of the tenth incident.
As to the tightness of Santos' grip on Cruickshank, it is important to note that,
19
.~-
~ (
according to both their versions, Cruickshank was moving toward the door when
Santos' hands made contact with Cruickshank's waist. As Cruickshank was in
motion, Santos likely would have been unable to stop or even slow down her
motion with a "lighthearted touch" He would have had to use a fairly tight grip
I
This is consistent with Cruickshank's version that she was grabbed by Santos and
held tightly A tight grip by Santos is, in turn, consistent with Cruickshank's
statement that she had to struggle to force Santos to break his grip A struggle by
Cruickshank is, in turn, consistent with her story that she stumbled when Santos .-
released her from his grip. I
The version of the tenth incident favoured by the majority has the peculiar quality
of being supported by neither Santos' or Cruickshank's evidence. Their version is
that Santos held Cruickshank more tightly than he thought, but not so tightly as she
thought~ (page 111) I submit that if Santos' grip was tighter than he thought, then
cle~ly it was not the "lighthearted touch" that Santos described. (page 94) If the grip
was not as tight as Cruickshank thought, then why did she have to struggle to break
the grip?
Santos emphatically and emotionally insisted in his testimony that the way he
,
touched Cruickshank's waist was not inappropriate "not in the way I touched her
and not in those circumstances" (page 94) Notwithstanding Santos' protestations to
the contrary, the majority find that his actions were inappropriate and unwanted.
They further find that he was mistaken in his judgement that his actions would be
acceptable to .Cruickshank and taken in jest. (page 113) Yet elsewhere in their award
the majoJ:'ity appear to accept that Santos had developed a very finely tuned
judgement as to the tolerances of his peers for sexual joking, including Cruickshank.
(page 101)
One is left to wonder why Santos' much-vaunted judgement failed him only on this
occasion and not on any of the other occasions when Cruickshank alleged he acted
inappropriately toward her The fact of the matter is that if Santos' judgement was
faulty in the Admitting Room incident, then there is every reason to believe that it
was faulty in other situations. After all, the Admitting Room incident was really a
"no-brainer" It didn't really require much judgement. As the majority clearly state,
20
\ (
I ..
"it was horseplay that had gone too far beyond the bounds of propriety" (page 113)
Surely a person with any degree of street-smarts would know that a person like
Cruickshank, who ranks as 2 on a scale of tolerance for joking, where 0 indicates
I
zero tolerance, would find physical horseplay uncomfortable. The only inference to
be drawn was that Santos knew that his behaviour was inappropriate but did it
anyway
I cannot accept that Santos' conduct on the above occasion was an aberration. In my ~
opinion, it reflects a deeply ingrained character trait and one that was displayed on
the numerous earlier occasions described by Cruickshank in her evidence. If Santos -
had, at least, admitted his misdeeds and apologized for them, I might have been
disposed to view him in a more favourable light. After all, he has significant
service with the employer, a_dear discipline record and, by all accounts, performs his
job in a very professional manner But in the absence of remorse, there can be no
reasonable expectation that Santos will reform the behaviours that led to this
grievance. In fact, Santos, towards the end of his testimony made an emotional
statement that indicated clearly that he was incapable of change. After the Vice-
Chair asked Santos to stop making extraneous comments and answer questions
directly, Santos looked at the panel and defiantly stated that ''1 am what I am and I
can't change for you. That's the way I am. You have to accept me."
The majority claim to have considered the principles of corrective discipline in
arriving at a three-day suspension. However, it does not appear that much
consideration was given to one of its central principles, e.g. that of deterrence. In my
view, a three day suspension does not send a sufficiently strong message to
employees about the seriousness of sexual harassment. In fact, it sends exactly the
9Pposite message. It implies that the Grievance Settlement Board is soft on sexual
harassment. In my view, this Board should have sent a clear message that its
approach to sexual harassment is that of zero tolerance. Zero tolerance does not
necessarily require the penalty of discharge in every case where sexual harassment is
established. It does, however, require a grievor to clearly demonstrate that he can
rehabilitate himself and repair the damage done to the workplace environment by
his misconduct. Such a demonstration was conspicuously absent in the case of this
grievor
21
\ (
,
The majority attempt to justify their imposition of a three-day suspension by stating
that it is not inconsistent with standards of discipline applied by the employer to
more serious offenses of sexual harassment committed by managerial personnel in
the same Ministry and referred to in the Courtney and Anderson cases. (page 115)
In my opinion, the sexual harassment found by the panel in Courtney was less
serious than that committed by Santos because it did not involve allegations of -
sexual assault.
The original management decision in Anderson was considered inappropriate by
the panel who heard the case and ultimately substituted their own remedy In my
view, the appropriateness of any penalty must be determined in light of the
particular facts of the case. A management decision which was challenged and
ultimately determined to be inappropriate is an irrelevant consideration.
The majority state that Santos, unlike Fawcett, was not in a position of power or
authority I submit, however, that as a security officer, Santos had power over the
com plianant' spersonal safety Such power carries with it at least an. equivalent
authority to the economic power of a supervisor
The majority state that Fawcett's misconduct was less serious than Santos' It is my
opinion, however, that Fawcett's misconduct is comparable to Santos' because it
involved an incident of unwanted physical contact and incidents of verbal
harassment and potential reprisal.
Having regard to the foregoing, I would have dismissed the grievance.
The majority conclude that there were undue and unreasonable delays by the
employer, first, in initiating and completing its investigation and, second, in
dismissing Santos after the investigation was completed In reaching this
conclusion the majority appear to rely exclusively on the length of time that elapsed
from the filing of Cruickshank's initial complaint to Santos' discharge, namely,
more than five months. To quote the majority, "after the employer had taken such
22
\ \
a long time to assess Cruickshank's allegations, Santos is entitled to assume either
that his conduct is condoned or that the allegations cannot be substantiated." (page
118) In my view, the majority erred in law both in considering the issue of undue
delay and in reaching the q::mclusion that they did. My reasons are as follows.
First, the issue of undue delay was not raised by the union until final argument. In
my opinion, this issue should have been raised by union counsel in his opening
statement on three grounds. ~
First, the grievor was fully aware from the time of his discharge of the period it took
for completion of the investigation and for its review by the employer The
majority are, therefore, in error when they state at page 116 that "the facts of the
delays, as well as the logical implications of those delays upon the merits of the
employer's dismissal action, were revealed and clarified as the employer's evidence
unfolded through the prolonged hearings"
Second, the issue of delay is properly a preliminary issue. If it had been raised at the
outset and resolved in favour of the union, it would have obviated the need for a
hearing into the merits. To entertain the issue of delay at the end of the hearing, is
an abuse of process as the union, in effect, is asking the Board to find that it has
wasted its time. hearing the merits. Here that amounts to what could only be
described as a profligate waste of public monies since there have been 27 days of
hearings spanning approximately one-and-one-half years. Therefore, in my view,
it is much too late in the day for the Board to consider the issue of delay
Third, by not raising the issue of delay until final argument, the union has
prejudiced the employer's defence to the grievance. If the issue had been raised at
the outset, it might well have affected the evidence called by the employer For
example, the employer might have seen fit to call the actual decision-maker to
testify as to the time that was necessary for the completion of the investigation and
the review of its findings Now that its case is closed, the employer has no
opportunity to supplement the evidence it originally adduced. Tha t evidence
consisted of the testimony of the investigator, Mr Yetman. He testified that his
investigations lasted two-and-a-half months He was not cross;..examined on
--
23
\ (
whether that period was necessary In my view, an adverse inference should be
drawn from the failure of the union to so cross-examine Mr Yetman. The Board
should infer that, had Mr Yetman been asked, he could have justified the time his
investigation took.
Given the complexity of the issues and the number of witnesses heard by this Board
and the fact that the hearings of this Board spanned one-and-one-half years, it is
submitted that it is patently unreasonable to suggest, as the majority do, either that -
the two-and-a-half months it took to complete Mr Yetman's investigation into the
same issues and the same witnesses was undue, or that the month or more it took -
the employer to review Mr Yetman's report and come to a decision, was undue.
The majority err in their interpretation of Article 27 of the Collective Agreement.
They state at page 117 that "the Collective Agreement gives the grievor a substantive
right to prompt investigation and determination of the allegations made against
him, without undue or unreasonable delay" In fact, Article 27 only deals with the
time limits for the filing and processing of grievances. The only right that Article 27
confers on Santos is to have his grievance processed by the employer in accordance
with the time limits in Article 27 It in no way governs the procedures to be
followed by an employer in imposing discipline. .
The majority purport to "condemn" the employer "for its indifference to the harm
and pain it caused both complainant and grievor by its failure to respond promptly
with an investigation and decision on the complainant's allegations." (page 118)
Yet the majority saw fit to issue an interim award providing for reinstatement of the
grievor without in any way addressing the central issue of whether the grievor
sexually harassed the complainant. It seems to me that this shows a complete lack
of concern for the feelings of both the grievor and the complainant. After all,
Santos, near the conclusion of his testimony, said that the case was about "clearing
my name, not getting my job back" And, of course, Cruickshank made it clear that
she wanted justice. In my opinion, the majority hold the employer to a higher
standard of conduct than they impose on themselves. As such they are guilty of
hypocrisy for which they deserve to be "condemned"
24
Froq\ the outset this case was marked by a very adversarial tone between Ms. Quick
and Mr Coleman. Both counsel, no doubt, contributed equally to this tone. In
addition to the rivalry between counsel, a friction of sorts developed between Ms.
Quick and Mr Seymour There were frequent skirmishes involving the above
three players, usually over procedural and evidentiary issues. These skirmishes
followed a more or less regular pattern. One or the other counsel would object to
the introduction of certain evidence. An exchange of submissions between counsel
would then follow Often, Mr Seymour would find it necessary to supplement Mr ~
Coleman's submissions with rebuttals of his own. An argument would then ensue
between Ms. Quick and Mr Seymour The Vice-Chair would then try to mediate a ~.
resolution of the issue and failing that, would make a ruling. This process at times
could become very protracted and acrimonious, resulting in a wastage of valuable
hearing time.
In my view, Mr Seymour must accept some responsibility for initiating the above
state of affairs. Notwithstanding that the grievor was represented by very able
counsel, he acted at times as if he were co-counsel for the grievor While Mr
Seymour has a proper role to play in protecting the interests of the grievor, it does
not extend to playing the role of advocate for the grievor To do so is incompatible
with the principal function of a panel member which is to assist the Vice-Chair to .
adjudicate.
Ms. Quick's procedural strategy for the conduct of her case is the subject of negative
comment by the majority As they mention, the testimony of the initial witnesses
called by Ms. Quick dealt primarily with background matters, especially the
employer's sexual harassment policy Very early on Mr Coleman objected several
times that this evidence dealt with matters that were non-controversial or
irrelevant. (Notwithstanding the nature of his objections, Mr Coleman, in the case
of almost every witness called by Ms. Quick, asked for a break at the end of
examination in chief in order to prepare his cross~examination. Moreover, Mr
Coleman cross-examined each witness at length.) Mr Seymour, of course, did not
hesitate on several occasions to express his impatience with Ms. Quick's strategy
The Vice-Chair, while being careful to respect Ms Quick's right to determine the
conduct of her case, basically expressed sympathy for the position of Mr Coleman.
25
-'
While it is permissible, and even desirable, that a Vice-Chair express opinions on
matters such as the above, I believe that this Vice-Chair may have allowed himself
to become frustrated with Ms. Quick's strategy and then may have let that
frustration influence his view of certain of the evidence called by Ms. Quick.
For example, frustration seems apparent in the following comments Mr Waisglass
makes at page 11 regarding Ms. 'Quick's reasons for delaying calling Cruickshank
until the end of her case. "Now that we have heard Cruickshank's testimony, we -~
understand why she was not presented as a witness much earlier We found her to
be a reluctant complainant and an uncomfortable witness who was displeased and
upset by the prolonged process, particularly the employer's delays and apparent
disinterest in resolving her initial request." In my view, the above description of
Cruickshank's performance as a witness is quite unfair and, in fact, is inconsistent
with other comments Mr Waisglass makes about Cruickshank's demeanor as a
witness. At page 105 he says "we agree that on first impression Cruickshank
presented herself as a very credible witness who was articulate and gave her
evidence in a reserved but direct manner" I would submit that any reluctance or
discomfort shown by Cruickshank was completely consistent with the testimony of
sexual harassment complainants in general. --
In my opinion, the scope of the employer's motion to reopen its case is not as
narrow as viewed by the majority As originally framed by the employer, the
motion was for the purpose of producing evidence of the reasons of the decision-
maker for dismissal. By inference this could have included the letter of
termination, the report of the investigator referred to therein, together with the
viva voce evidence of the decision-maker The scope of the motion was limited in
that Ms. Quick said that she would not add to the reasons given in evidence by the
employer before it closed its case. That evidence consisted of a number of factual
allegations of sexual harassment by the grievor But the reasons of the employer for
dismissal are not confined to the factual allegations of misconduct They also
comprise the rationale of the employer, based on the principle of progressive
discipline and any other relevant considerations, for imposing the penalty it did.
Therefore, if the motion had been granted, the employer would have been free to
call evidence as to why the factual allegations of sexual harassment upon which it
26
I
relied were sufficiently serious to justify discharge. Such evidence is frequently
heard in discharge cases. It goes directly 1'0 the merits of the employer's case or
whether there was just cause. Accordingly, it is erroneous to suggest, as the majority
do, that Ms. Quick restricted her motion from dealing with just cause.
Ms. Quick explained her failure tocaU the above evidence during her case in chief as
a matter of inadvertence. I agree with the majority that this explanation is not
appropriate as her failure resulted from a deliberate decision on her part. That ~
decision, however, stemmed from certain remarks the Vice-Chair made in the
course of the hearing regarding the quality of evidence the Board was interested in
receiving. Those comments were wrongly interpreted by Ms Quick. Her
interpretation was clearly a mistake and it was that mistake that led to her decision
not to call certain evidence.
Ms. Quick's motion to reopen her case presented this Board with an opportunity to
undo the effect of Ms. Quick's mistake. This would have entailed no real prejudice
to the union as the union had only commenced its case in the most technical sense,
e.g., by the introduction of a few non-controversial documents.
The majority in their reasons make no mention of natural justice considerations.
Rather, they focus exclusively on a test applied by criminal courts for permitting the
Crown to reopen its case. It is a very rigorous test. However, it is well-established
that boards of arbitration are not bound by the rules of evidence applied by the
courts. Moreover, the policy reasons that led to the development of the above test
reflect the seriousness of the sanctions that a criminal court can impose. Different
policy considerations apply in labour arbitration. Here the grievor is not on trial
and is not faced with loss of any civil rights if his grievance is dismissed.
It is well-established that the jurisdiction of an arbitration board is remedial, not
punitive. In exercising its remedial jurisdiction, the Board is primarily concerned
with the viability of the employment relationship in light of all relevant
circumstances. That question should be central to the minds of an arbitration board
in dealing with a motion to reopen. It is apparent from the reasoning of the
majority that that question was far from central to their minds when dealing with
27
';:>.
Ms. Quick's motion to reopen. Their concern was only whether there was some
oversight or inadvertence by Ms. Quick and whether there was any prejudice to the
grievor While the former may not be irrelevant, it surely is not pivotal.
Concerning the latter, the majority do not specify how the grievor would have been
prejudiced. In my view, there was no prejudice as the grievor had not started his
case Alternatively, if there was a prejudice, it was more than curable by an
adjournment
~
In the course of his argument regarding his motion for non-suit, Mr Coleman
made specific reference to the failure of the employer to call the decision-maker as a
witness. I therefore asked Mr Coleman during his argument regarding Ms. Quick's
motion to reopen, whether he intended in his final argument on the merits to
make further submissions regarding the consequences of the above failure. Mr
---
Coleman indicated that he might well do so. In my view, the majority gave no
consideration to the consequences for the employer if Mr Coleman did revisit the
above subject in his final argument. Mr Coleman, in fact, did so indirectly He
submitted in his final argument that the discharge of the grievor was invalid on the
ground of undue delay The evidence of the decision-maker would clearly have
been relevant to this issue. Yet the effect of the majority's ruling was that the
employer was barred from calling the decision-maker or any other witnesses.
It is a fundamental tenet of natural justice that a party is entitled to full opportunity
to meet the case against it. Here the effect of the majority's ruling was that the
employer was denied that right. In the result, there was a denial of natural justice as
the majority ultimately gave effect to Mr Coleman's submission.
In conclusion, the majority followed a far too technical and narrow approach in
dealing with Ms. Quick's motion to reopen. This approach is quite out of place in a
labour arbitration proceeding for the reasons so aptly stated by Blair, J.A. in Re City
of Toronto and Canadian Union of Public Employees, Local 79, 133 D L.R. (3rd) 94 at
pages 107 and 108:
"The purpose of arbitration of grievances under collective agreements
is to provide an expeditious and fair method of settling disputes which
28
~
experience has demonstrated are much better solved in this fashion
than by complex judicial proceedings. Most arbitrators are laymen
who bring the benefit of their experience to the practical solution of
complex human problems. Courts consistently have recognized the
special role of arbitration boards and have been loath to interfere with
their decisions or proceedings.
It is, therefore, surprising to observe the extent to which
arbitration awards purport to deal with complex questions of law -
Many arbitration board decisions cited to us contain scholarly
dissertations on important substantive and procedural rules applicable
to judicial proceedings. They exemplify the extreme legal formalism
and adherence to technical rules which overhangs the arbitration
process. At best, these elaborate legal studies may be irrelevant because
boards are not bound in their procedure by technical rules of law and
procedure. At worst, they can cause delay and unnecessary expense
and, as the argument in this appeal demonstrated, they could obscure
the real issues confronting an arbitration board and confuse it in the
performance of its duty While it may be helpful for an arbitration
board to seek guidance by way of analogy from established legal
procedures, they risk committing jurisdictional errors by rigid
adherence to them."
Having regard to the foregoing, I would have allowed the employer's motion to re-
open its case.
Dated at Toronto, Ontario this 28th day of April, 1995.
772'1 ()!:JJo
f
M.F O'Toole - Employer Member
29
" ...
'i~'~- I~
974/92 O.P.S E.U_ (SANTOS)
- and -
THE CROWN IN RIGHT OF ONTARIO
(MINISTRY OF HEALTH)
ADDENDUM
Edward E. Seymour, Employee Nominee
--
I am in agreement with the decision as outlined in the main Award,
however, I do find it necessary to address a number of matters
which cause me concern
.
The Panel, particularly the Vice Chairman, and on several occasions
this Member, expressed concerns that little of the Ministry's
presentation appeared to be on point in that much of it was
hearsay
Development, Implementation, Endorsement of the Program on Sexual
Harassment.
While this Member commends the efforts which went into the
development of the Policy, the implementation and enforcement of
the Policy are less impressive
The Ministry expended considerable effort developing a sexual
harassment policy Considerably less time and effort were expended
articulating that POlicy to the workforce. Developing a policy,
printing it on expensive-looking, glossy paper, and circulating it
in the pay envelope is simply not adequate to increase awareness,
particularly when attempting to change attitudes There was little
byway of evidence from the Ministry's own witnesses to show that
all employees received the POlicy, read the POlicy, understood its
meaning, or understood the consequences of violating the POlicy
Other than spot-Checks, there was no evidence to suggest the
-- - - ~~._-
I Page 2
Ministry monitored its workforce to determine if the Policy was
effective Certainly the Ministry's witnesses did not portray any
insensitivity to the issue of sexual harassment In reality,
despite two or more days having been spent addressing the issue,
most of the evidence supported the griever's contention that he did
not receive any material, and in reality, most of the material was
developed and circulated after he was discharged
The Ministry's own evidence supports the likelihood that Mr Santos ~
neither rec~ived any sexual harassment material, nor attended any
sessions related to the Policy either The implementation of the
Policy, particularly as it, related to the QSMHC, in my view, was
wholly inadequate
a.,i. Sexual Banter in the Workplace
Considerable time was expended addressing the sexual banter issue,
and I am in complete agreement with the main Award that banter was
a common occurrence in the workplace, however, no-one with any
managerial authority did anything constructive to address it They
did not express any concern or displeasure about Mr Santos's
comments to Ms. Cruickshank or to anyone else From the evidence .
of the Ministry's own witnesses, they were aware sexual banter was
common Ms Doumani was aware of it, as was Mr Cyfko
From the evidence, there is no doubt Ms. Cruickshank was not as
actively involved in the banter as were others, but she was present
when it occurred, and several witnesses t~stified they were present
when Mr. Santos was engaging in the banter with her It is agreed
some witnesses testified she expressed displeasure to them about
the comments, but neither they nor she addressed the issue with Mr.
Santos in any meaningful way
j)
Page 3
Several of the witnesses, while stating Mr Santos had engaged in
sexual banter, also expressed the view that had he stepped over the
line they would have addressed it with him
There is absolutely no question sexual banter took place in the
workplace, nor is there any question that Ms Cruickshank, along
with others, was present when it occurred, and there is also no
question that no-one, including Management, told Mr Santos in any
serious way that his comments were offensive .~
Ms. Cruickshank and Mr. Santos throuqh the eves of their co-workers .....
Management's Counsel explored in some considerable detail how the
witnesses perceived both Ms. Cruickshank and Mr Santos There is
absolutely no question from their evidence, both were very popular,
but in different ways It is not an exaggeration to suggest that
Mr Santos was viewed as a "back-slapping, more gregarious indivi-
dual, " while Ms Cruickshank was viewed as a quiet, reserved
person, who, while not outgoing, was well respected.
We, as a Panel, observed that Ms Cruickshank was a radically
different from the Ministry Counsel attempted to .
person one
portray. Ms Quick's version was that of a timid individual The
person who testified for approximately four days, two days in
direct examination and two days in cross-examination, was certainly
not timid
Apart from his problems with Ms Cruickshank, there was absolutely
nothing in the evidence from Ministry witnesses which would suggest
Mr Santos was not well liked at the QSMHC by all who knew him. It
was equally true for Ms Cruickshank Both were well liked and
highly respected
Considerable time and effort were expended through numerous
witnesses addressing sexual banter and the Sexual Harassment
v
()
Page 4
?olicy, little of which brought us any closer to determining what
actually occurred between Ms Cruickshank and Mr Santos
Certainly the Ministry witnesses held both Mr Santos and Ms
Cruickshank in the highest regard They, almost to a person, were
able to distinguish Mr Santos was more outgoing and gregarious,
while Ms Cruickshank was the more quiet and sedate For the
witnesses this did not present a problem. To them, it didn't mean
Mr Santos was any more popular than Ms Cruickshank in their view
None of the witnesses tho\.1ght any less of Ms Cruickshank because ~
she did not engage in social activity outside the workplace They
had no difficulty accepting .or respecting her desire not to
participate in that sort of activity
Staff would lie to protect Santos
Another theme which prevailed throughout the Ministry's presenta-
tion was that security staff and others would lie to protect Mr.
Santos
It was intimated security officers would falsify reports to protect
one of their own It was intimated that because people socialized
outside the workplace, they would lie for no other reason than to
protect Mr Santos These people included Dr Harrison and Mr.
Switek, who is also an RCMP officer There was not a sinqle shred
of evidence that Mr. Santos and other security officers falsified
the Activity Reports or Occurrence Reports. In the absence of any
evidence to disclose any impropriety over the manner in which
security officers filed their Activity Reports, this speculation
can only cast disrepute on the entire security staff at QSMHC
This line of questioning would have been acceptable had the
Ministry, in its presentation, given examples of falsified reports,
however, there was none
~ -
"
Page 5
This was not a situation where the questioning was done to set up
or establish a fact which the griever would be called upon to
justify or deny There was absolutely nothing in the evidence of
any of the Ministry's witnesses which could sustain the Ministry's
I
proposition the security staff, nursing staff or Administrative
staff acted improperly
It was an effort which not only impugned the motives 'of the
griever, but also the motives of many with whom he was associated ~
Who could drop in unexpected Iv to the Admittinq Area?
Ministry Counsel, in her opening statement, stressed that Ms
Cruickshank worked in an isolated part of the hospital and conse-
quently, was extremely'dependent on the security staff, therefore,
it is necessary to address how isolated the location was, even on
the 11 p m to 7 30 a m shift
Certainly from the evidence, the Admitting Area is not quite so
isolated as Ministry Counsel suggested. Anyone of the following
could, and did drop into Admitting any time at night
.
- Any of the three security staff, while I am aware
Ministry Counsel suggested the other two security staff
could conspire with Santos to ensure they would not drop
in on Admitting while Santos was there, it is nothinq
more than a suqqestion Absolutely no evidence was
called which could, in any way, prove they did this on
the evening of July 19, or on any other occasions
Absence of any proof to cast any suspicion on Mr Welsh
or Mr. Kerr, Ministry Counsel's hypothesis is nothing
more than speculation
- Dr Logan could, and in fact did drop in unexpectedly
He could have done so at any time
I
Page 6
- Mr Cyfko could also drop in at any time, and his very
own evidence is conclusive that were he to be called to
the ward, or to get medications, he could pass through
Admitting, and absolutely no-one would know he was
I
coming
- Patients could, and did come to the Admitting Area alone,
and accompanied by police Their arrival was clearly
visible to the Admitting staff, and presumably Admitting ,-
staff would be clearly visible to them
The evidence of both Santos and Cruickshank was to the effect that
Admitting was quite busy on the night of July 19
" The Admitting Area is, in effect, "a fish-bowl," with glass
windows, panic buttons and easily viewed from the outside I agree
entirely with Union Counsel, Mr Coleman, that if Mr Santos were
to select any place to launch a physical assault against Ms
Cruickshank, he could not have selected a more inappropriate
location, even on the 11 p m to 7.30 a m. shift.
The Investiqation into the Alleqation
In his opening statement, Union Counsel said the Ministry was
suggesting the Union was responsible to others about the sexual
harassment issue, and it was the Union's position that the Ministry
dealt with Mr Santos in a harsh way as an example to others rather
than on the merits of the case He termed the Ministry's approach
as one in which the Ministry effectively said, "We will shoot him,
throw him on the front lawn, and everyone will be educated about
sexual harassment "
The motivation for the Ministry's approach to sexual harassment can
best be seen in Ms Ricci Gruschow's evidence It was "her view
that in cases of sexual harassment, as with other matters, the
Page 7
punishment should fit the crime 11 In a serious case, she said, re-
instatement was not appropriate She said that if a serious
complaint was substantiated, the impact of putting a person back
into the workforce would affect credibility She said, l1it would
be a strong message that you condone inappropriate behaviour, and
the people affected would not complain, and people conducting the
harassment would continue 11 She said it would completely negate
the Policy and imply inappropriate behaviour was condoned by the
Ministry It would, she said, have an impact on morale and .~
producti vi ty, and would make complainants feel it was not workable,
and give people free rein to escalate their behaviour if there were
no consequences for their actions Ms. Gruschowsaid the riqhts of
the harasser were also addressed in the Policy to ensure that
people urtderstood it was a neutral process
The Ministry's Investigation could not, in any way, be regarded as
a neutral investigation, and the failure to conduct a proper
investigation also severely impacted on the credibility of the
Ministry's Policy The Ministry accepted Ms Cruickshank's
allegations in their entirety, and completely ignored her wishes on
how she wanted the matter addressed.
I completely accept that it is the Ministry's full right to disci-
pline as it deems necessary according to the severity of the
offence committed This, however, should be done after there is as
obiective an investiqation as possible to determine what actually
occurred In my view, that did not occur in this situation. +t is
useful to compare the treatment both Ms Cruickshank and Mr. Santos
received as the events began to unfold
. Ms. Cruickshank speaks to different individuals, and finally
speaks to Ms Vita Clark Adamson
. Ms Vita Clark Adamson, quite correctly in my view, examines
the Sexual Harassment Policy and encourages Ms Cruickshank to
I,
Page 8
put her concerns in writing, and Ms Cruickshank complies
(Exhibit 8, October 9,) two and a half months after the last
incident
. Ms. Vita Clark Adamson and Ms Cruickshank both go to see Ms.
Gisela Albrecht, and Ms Albrecht says we have to go to Mr
Frost, who is Mr. Santos's Supervisor At this meeting, Ms
Albrecht discloses to Ms Cruickshank that a number of women
have been complaining about Mr Santos harassing them. (No -~
evidence was presented during t-he entire Hearing to
substantiate these allegations.)
. Ms Albrecht and Ms Cruickshank go to see Mr Frost
Cruickshank adds more details, and Frost bangs his fist on the
desk and says, "Okay, he is fired " (This occurs without
asking Mr. Santos for his version of the allegations )
. Without disclosing the reasons, Mr Frost informs Mr. Santos
that they have to go to Personnel He engages in small talk
with him, says nothing about the allegations, and escorts him
to Sue Ellen's office. Sue Ellen informs him he has been .
accused of sexual harassment There is no Union
Representative present Mr. Santos asks for the identity of
the individual who complained, and is given no details about
the allegation. Mr. Santos is suspended pending an
investigation
. The same day, Ms. Sue Ellen meets with Ms. Cruickshank,
informs her Santos was suspended and says Ms. Cruickshank may
have to leave her ;ob, but qives no details why
. Through the efforts of the Union, Mr Santos returns to work
because the Union argues it is unfair to have him suspended
when the allegations haven't been investigated
Page 9
. Mr Santos returns to work following four or five weeks'
absence and receives full compensation, only to discover no
investigation has commenced, and he files a grievance
requesting the appointment of an independent Investiqator
. Three days following the filing of the grievance requesting
the investigation, Ms. Cruickshank files a formal complaint
. The Investigator is appointed, has three meetings with ~
Cruickshank, and two with Santos.
. It is through the Investigator that Mr Santos finds out who
his accuser is, five and one-half months after the Admitting
Room incident, the last incident, and one and a half months
after the suspension.
. Both Cruickshank and Santos express concerns about Mr
Yetman's methods of investigating (It is clear from the
evidence that Mr. Yetman himself was not certain what a number
of his entries meant )
. The investigation commences in December, and lasts for ,two and
a half months. The Report is released in March, a copy of
which ~s sent to Cruickshank, but Santos is forced to get his
from the Freedom-of-Information, and many portions of what he
receives are censored I
Following the release of the Report, Frost telephones I
. Mr
Santos and asks him to attend a meeting with Allison Stuart
He agrees to the meeting at a mutually-agreeable time. Santos
is heading to the meeting, only to hear from his Union
Representative that he will be fired. He gets angry, goes to
Administration, throws the keys on the counter and does not
attend the meeting
- -~
Page 10
. Throughout the Hearing, we heard considerable evidence on the
development and implementation of the Sexual Harassment
Policy, even though its existence was not contested by the
Union (two days minimum. ) We heard considerable evidence
.regarding banter, both sexual banter and otherwise, in the
workplace, at the end of which it was clear that witnesses
engaged in the banter to varying degrees, including Ms
Cruickshank There was evidence from other witnesses, i e.
Mr Ted Cyfko, who said they did not hear or see it "
personally, but they were aware it occurred. There was never
any Managerial directive stating the behaviour was unaccep-
table Every witness who testified and knew both the griever
and the complainant had the greatest of respect for both.
. Ministry Counsel was informed numerous times throughout the
proceedings regarding the Panel's concern about the hearsay
nature of the Ministry's evidence, about the lack of clear,
cogent and convincing evidence about the issue at hand - "Did
Mr Santos harass Ms. Cruickshank'?"
. Despite these cautions, Ministry Counsel insisted it was her .
right to present the evidence in the manner she saw fit, and
the Panel acceded to her right to do just that
This Member is in full aqreement with Ministry Counsel's assertion
that .sexual harassment, particularly when the alleqations are bv
one person aqainst another, often in isolation, are most difficult
to prove. While that is so, it does not alter the onus of proof
required of the Ministry
We heard considerable evidence which was completely irrelevant to
the issue we had to decide, and again, despite the Vice Chairman's
expressed concern about the irrelevancy of the evidence, Ministry
Counsel stated she was under instructions from her client to
proceed in that manner. Ministry Counsel called every witness she
--
Page 11 /'
said she would call in her opening statement She called no vi
witness she did not identify.
There were many difficulties which occurred throughout the
proceedings, and I accept my role in contributing to those
difficulties, many of which have been addressed by Vice Chairman
Waisglass in the main Award, and by Mr O'Toole in his Dissent 1.
am of the opinion that the role of the Panel, this Member included,
is to listen to the evidence, take notes and assess the merits of .~
the evidence presented. In the normal course of events that is
what I do.
That responsibility, however, does not, in my view, extend to a /
situ~~ion where any or all of the following occur.
. Evidence given by another witness or the same witness is mis~
stated to them at a later stage of the proceedings,
. Leading questions are repeatedly asked of Counsel's own
witnesses in direct examination on many crucial facts,
. Witnesses are prompted by Counsel when giving the evidence in
cross (as occurred during the first day of Ms Cruickshank's
cross-examination,)
. Ms Cruickshank, while testifying in direct examination, was
asked repeatedly by Ministry Counsel if she wanted a break,
only to decline each time until Vice Chair Waisglass instruc-
ted the witness to indicate to the Panel if she wanted a break
and we would grant her wish
It is the view of this Member, supported by approximately 50 years
of accumulated Arbitral Jurisprudence in the Province, that a
griever, no matter what the wrong-doing, has the right to be fully
heard and to have the opportunity to justify and explain his/her
Page 12
actions Certainly Mr Santos was not extended the courtesy by
Management to express his side of the story until he spoke to the
Investigator It was through no small effort that he finally got
the right at the Hearing.
Numerous times throughout the proceedings, we were forced to delay
or adjourn the proceedings because Ministry Counsel failed to
provide documents requested by Union Counsel Jurisprudence on
~
this matter is well established before the Grievance Settlement
Board and, therefore, there is absolutely no justification for this
type of delay
Mr. Waisglass cautioned Ministry Counsel that it was her duty not
to obstruct, but to facilitate the process. He expressed concern
over the unusual delay which had occurred
At the conclusion of Ms Cruickshank's examination-in-chief, Mr
Coleman said the documents he requested would be produced, but 7
since he was unable to review them, he needed time to do so. Mr ,
Coleman said some of the documents had been requested only the day
before, but he said that resulted from the delay experienced in
recei~ing documents that had been requested earlier He said some
-critical documents no lonqer existed
The Hearing was adjourned to allow Mr Coleman the opportunity to
confer with Ministry Counsel, again with the admonishment from Vice
Chairman Waisglass, that he hoped they could concur on the
disclosure of documents to avoid further delay, especially since
some of the documents had been requested in December, 1993, and
were not received until May 2, 1994.
On May 18 (Day 15 of the proceedings,) and before the commencement
of his case, Mr Coleman again raised his concerns over his
inability to obtain documents needed for his defence of Mr Santos
Ms Quick objected to the admission of the records Mr. Waisqlass,
.,.
- -
Page 13
in his rulinq, claimed the documents were admissible one way or the
other, either by consent or subpoena. Ms. Quick conferred with her
adviser for less than a minute withoutleavinq the Hearinq Room,
and the documents requested were tendered. I
It was here that Vice Chairman Waisglass informed Ministry Counsel
there was no documentary evidence regarding the dismissal or the
suspension Ms Quick requested Mr Coleman consent to tender the
documents which was refused ~
The Ministry's Counsel had earlier in the day confirmed she had ~
closed her case Following the procedural matters addressed above,
and a brief recess so Mr Coleman could review the documents which
had just been tenq.ered, Mr Coleman informed the Panel of his
intention to bring forth a Motion for Non~Suit
During the discussion in which the tendering of the letter was
refused by Mr Coleman, and during the discussions surrounding the
Motion for Non-Suit, Ms Quick raised the issue the Panel had
refused to accept the Investigator's Report on the basis that it
was hearsay. That is absolutely and unequivocally not so At no
time did Mr Waisglass, prior to the closing of her case, denyMs
Quick the opportunity to present her case in the manner she wished.
Ms Quick was repeatedly reminded of the Panel's concern about the
hearsay nature of her evidence, all of which was permitted She
was nonetheless reminded that the Panel wanted clear, cogent and
convincing evidence Each and every time the concern was
addressed, Ms Quick demanded, and received, the right to proceed /
in the manner she wished, often stating she was directed by her
client to proceed and conduct her case in the manner she was
Repeatedly from this point forward, Ms Quick made various comments
about this Panel's refusal to permit 'her to file the Report, almost
as if by saying it, it would be so The responsibility for the
Page 14
failure to enter the Investiqator's Report rests entirely on the
shoulders of Ministry Counsel, as. does her failure to call the
decision-maker, Ms. Allison Stuart, Mr. Frost, (the qriever's
foreman) and Sue Ellen As addressed in the main Award, Ms. Quick
called everyone she said she would call to testify, no more, no
fewer
It was not until the following day that Ministry Counsel requested
permission to re-open her case I am in complete agreement this .~
request was in reaction to the Motion for Non-Suit
~
I have already addressed the misstating of the evidence by Ms
Quick in her cross-examination of Mr Santos When it occurred,
the Panel was forced to review its notes, thereby slowing down the /
procedures con~iderably On virtually every occasion we did so,
Ms Quick's version of the evidence proved to be incorrect At a
minimum, a griever, especially someone who has been chargeq with
the very serious offence of sexual harassment, has the riqht to
have his own evidence and the evidence of others played back to him
accurately so that he miqht have an opportunity to respond
It is vital to understand, and I am not speakinq here about the
contradictions in the evidence, I am speakinq about an inaccurate
recitation of the evidence as it was qiven.
Ministry Counsel simply cut off Mr Santos before he had the
opportunity to answer her questions completely This often led to
arguments between the two Vice Chairman Waisglass cautioned Ms
Quick repeatedly to permit him to answer before proceeding to
another question, or cutting him off
There is no question the manner in which Mr Santos responded to
the questions was somewhat long-winded, and he, himself, was
repeatedly cautioned by Mr Waisglass to listen to the question
Page is
carefully and to respond to it If he did not understand the
question, he was directed to say so
In conclusion, the manner in which the Ministry treated both Mr
Santos and Ms Cruickshank throughout the whole episode was
absolutely abominable True the Ministry had a Sexual Harassment
Policy, but the manner in which it enforced the policy can be
regarded as nothing short of hypocritical Ms Gruschow, in her
evidence, said the material circulated throuqhout the Ministrv ~
included an explanation of the riqhts of the alleqed harasser to
ensure people understood it was a neutral process As its
enforcement of the policy related to Mr Santos, it was anything
but neutral.
In her argument, Ms. Quick alluded to Mr. Santos's demeanour in
cross-examination, his reluctance to answer questions, and
particularly after having been given a caution for his long-winded
answers, his comment to the effect that II I am what I am, I can't
change for you, particularly when the future of his life was in our
very hands If he was unwilling to change for us, what hope could
there be he would change his behaviour in the workplace II
In the view of this Member, that is an unacceptable and unreason-
able interpretation to put on that particular outburst In the
view of this Member, Mr. Santos was merely expressing his frustra-
tion to this Panel and saying, this is the first time I have been
given the opportunity to fully state my side of the story, and
regardless of the consequences, no-one is going to stop me from
doing just that
Having heard his evidence and that of others repeatedly misstated,
Mr Santos reached the point where he simply did not trust the
recitation of any of the facts by Ministry Counsel as accurate On
several occasions, Mr Santos placed himself completely at the
mercy of the Panel when he simply responded to a recitation of what
Page 16
he heard by saying, IIIf you gentlemen have it recorded in your
notes, then I said it II
Counsel for the Ministry introduced absolutely no case law from the
Ministry of Health regarding the issue of sexual harassment On
first blush, one might assume that there was none The Union,
however, presented three It is necessary to address two of them in
considerable detail because they adequately expose the Ministry's
hypocrisy in its enforcement of its Sexual Harassment Policy. Those .~
are COURTENAY, G S B.l9l2/88 (WILSON,) and ANDERSON, G.S B
38422/92 (STEWART )
The Courtenay case and the Anderson case involved allegations
against a Ministry of Health Management employee, William Fawcett,
who had third-party status at the Courtenay Hearing, and declined
it at the Anderson Hearing
The allegations against him included comments of a sexually-
provocative nature, proposals for private encounters of a sexual
nature, suggestions for meetings in his hotel room, brushing up
against an employee in an inappropriate way, suggesting to one
employee she was favouring her boy-friend with extra overtime.
This, and other information, was taken to the Regional Manager, who
requested it be put in the form of a formal complaint. The
complainants requested their complaint be filed for reference in
the future because they just wanted the advances to stop Because
the advances did not stop, the grievers attended a meeting with Mr
Fawcett's Supervisor and confronted him with the alleqations, some
of which he denied, and others which he admitted
In comparison with this case, on no occasion did Management or the
complainant address the concerns with Mr. Santos in a similar
fashion
Page 17
In the Courtenay case, the griever, at one point, was appointed to
classified staff, and from the outset she began to receive corres-
pondence critical of her performance, and upon confronting Mr
Fawcett was assured it was unimportant The griever regarded it as
retaliation for her complaint
Other occurrences were that Fawcett told her two other employees
did not want to work with her, and she confronted the employees,
and they, along with the griever, demanded meeting with Mr .~
a
Fawcett, at which they denied the allegations
\ Accused the griever of absenting herself from work without
.
permission
. Submitted numerous memos regarding the griever's work perfor-
mance, all of which the griever interpreted as harassment
When the sexual comments started again, she finally filed a formal
complaint about sexual harassment In the decision, a majority of
the Panel found the griever was exposed to off-colour and lewd
statements As a Manager, Fawcett ought to have known the comments
were inappropriate, that Fawcett "later lapsed into an offensive
statement towards the qriever --- which was now more serious
because he was now affected by actual knowledqe of the qriever's
sensitivity to such comments II The maj ori ty of the Panel stated at
page 84 that, lilt is much more serious where you have the knowledge
that the employee will be adversely affected by the comments The
majority did not agree that Mr Fawcett systematically harassed the
griever since her original complaint The remedy is reproduced in
its entirety
THE GRIEVOR IS ENTITLED TO A DECLARATION THAT SEXUAL HARASSMENT TO
THE EXTENT FOUND BY THIS BOARD DID OCCUR I HOWEVER DO NOT THINK I
THAT IT WOULD BE APPROPRIATE TO DIRECT THE EMPLOYER TO TRANSFER
WILLIAM FAWCETT THE FINDINGS AGAINST HIM ARE NOWHERE NEAR AS
.
Page is
SERIOUS AS THE ALLEGATIONS MADE AGAINST HIM SUCH AN ORDER WOULD
ONLY BE JUSTIFIED IF THERE WAS NO HOPE OF REMEDYING THE SITUATION
WITHOUT SUCH AN ORDER I DO NOT BELIEVE THAT THE FACTS DISCLOSE
SUCH A SITUATION THE EMPLOYER IS DIRECTED TO COMPLY WITH THE
(
COLLECTIVE AGREEMENT AS PROVIDED IN ARTICLE 27 AND TO TAKE WHATEVER
STEPS ARE APPROPRIATE TO MAINTAIN A WORK ENVIRONMENT FREE FROM
SEXUAL HARASSMENT IN PARTICULAR, IT IS SO DIRECTED WITH RESPECT TO
WILLIAM FAWCETT'S BEHAVIOUR TOWARDS THE GRIEVOR I PERSONALLY
BELIEVE THAT HE WILL COMPLY, IT IS A MATTER OF EXERCISING SELF- ~
RESTRAINT AND REFRAINING FROM INAPPROPRIATE COMMENTS SUCH WE HAVE
FOUND HE MADE IN THE PAST
WITH RESPECT TO THE CORPORATE FILES, THE EMPLOYER IS TO CHECK TO SEE
THAT ALL THE PERFORMANCE APPRAISALS ARE ON TH~ GRIEVOR'S CORPORATE
j, FILES ALTHOUGH I DID NOT FIND ANY SINISTER INTENTION IN WHAT
~:,)'
APPEARS TO HAVE BEEN A MIX-UP IN THEIR NOT ORIGINALLY GOING IN THE
CORPORATE FILES, BECAUSE THE OTHER CONDUCT OF FAWCETT HAD A NEGATIVE
EFFECT ON THE GENERAL SITUATION, IT WOULD SEEM AN APPROPRIATE STEP
TO MAKE CERTAIN THAT THE CORPORATE FILES ARE COMPLETE THE
GRIEVOR'S DESIRE TO RECEIVE A LETTER OF COMMENDATION OR HAVE REMOVED
ANY DISCIPLINARY OR OTHER CRITICAL LETTER IS BEYOND THE SCOPE OF .
REMEDIES AVAILABLE IN THIS CASE BECAUSE THEY HAVE NOT BEEN FOUND TO ---~-..
RELATE TO THE FINDINGS OF SEXUAL HARASSMENT
WITH RESPECT TO THE EMPLOYER ITSELF, IT IS OF COURSE RESPONSIBLE FOR
THE ACTS OF ITS MANAGER AND FURTHER TO THE EXTENT THAT IT DID NOT
IMPLEMENT THESE REMEDIES ON ITS OWN MOTION ONCE THE GRIEVOR
COMPLAINED IN 1988 I HAVE ALREADY MADE FINDINGS RELATING TO RUSK'S
ROLE NO REQUEST WAS MADE FOR DAMAGES BY THE GRIEVOR
As it would turn out, the majority of the Panel was incorrect in
'.~ its assessment of Mr Fawcett, and its assertion he was not likely
to offend, as was disclosed in Anderson G S.B. 3842/92 (STEWART )
l
Page 19
Some of the allegations raised against Mr Fawcett during the
Anderson Hearing occurred when the Courtenay Hearing was in
session, and which Mr Fawcett attended fully
When the Anderson grievance was fi 1 ed, the appointment of an
Investigator was requested and accepted In the Anderson Hearing,
Mr. R. Armstrong, Regional Manager, testified, after receiving and
reviewing the Courtenay decision that, II he determined it was
appropriate to write a non-disciplinary letter of counselling to ~
Mr Fawcett II
The Investigator's Report as quoted in the Anderson decision at
pages l3 - 15, was summarized as follows
THE INVESTIGATOR'S REPORT IS DATED MARCH 1, 1993 AND HER CONCLUSIONS
ARE SET OUT IN SUMMARY FORM AS FOLLOWS
ALLEGATION ill
THE GRIEVOR ALLEGES THAT SHE WAS SEXUALLY HARASSED BY THE SUPERVISOR
ON DECEMBER 4, 1990 WHEN HE MADE COMMENTS ABOUT HOW PASSIONATE SHE
MUST BE AND STROKED HER HAIR
THERE WERE NO DIRECT WITNESSES TO THIS INCIDENT I FIND THAT ON THE
BALANCE OF PROBABILITIES AND TAKING INTO CONSIDERATION THE GRIEVOR
REPORTED THIS TO A COLLEAGUE THE NEXT DAY AND THE CREDIBILITY OF THE
WITNESSES THAT THIS INCIDENT DID OCCUR AS DESCRIBED BY THE GRIEVOR
ALLEGATION iF2
* THE CHANGE IN HER SCHEDULE FROM PERMANENT DAYS TO ROTATING
SHIFT WITHOUT PRIOR NOTIFICATION OR CONSULTATION DESPITE THE
FACT THAT THE SUPERVISOR ENCOURAGED HER TO APPLY FOR PERMANENT
DAYS TO ACCOMMODATE HER FOLLOWING RETURN FROM MATERNITY LEAVE,
Page 20
THE GRIEVOR ALLEGES THAT HER REPUDIATION OF WHAT SHE CHARACTERIZES
AS A SEXUAL ADVANCE ON DECEMBER 4, 1990 LED TO A CHANGE IN HER
SCHEDULE FROM PERMANENT DAYS TO ROTATION SHIFT
1 FIND THE GRIEVOR'S SCHEDULE WAS CHANGED FROM PERMANENT DAYS TO
ROTATION SHORTLY FOLLOWING THE DECEMBER 4, 1990 INCIDENT AND AS
THERE WERE NO SOUND BUSINESS REASONS PUT FORWARD THAT WOULD EXPLAIN
THAT CHANGE, THAT ON A BALANCE OF PROBAB IL lTI ES THERE WAS
-'
RETALIATION AGAINST THE GRIEVOR RELATED TO THE DECEMBER 4, 1990
INCIDENT
ALLEGATION if3
* PRIOR TO DECEMBER 4, 1990 THE SUPERVISOR HAD TOLD TO [SIC]
THE GRIEVOR THAT SHE WAS THE ADMINISTRATIVE SUPERVISOR AND
THAT HE WANTED TO MAKE AN ASSISTANT MANAGER POSITION FOR HER,
WHEREAS AFTER DECEMBER 4, 1990 THESE CONVERSATIONS CEASED,
I FIND THAT THERE WAS NO POSITION AT GEORGIAN CACC FOR AN ASSISTANT
MANAGER AND THAT THE GRIEVOR COULD NOT HAVE ADVANCED INTO SUCH A
POSITION I DO FIND THAT ON THE BALANCE OF PROBABILITIES THAT THE
SUPERVISOR CEASED DISCUSSIONS WITH THE GRIEVOR REGARDING THE
POSITION OF ASSISTANT MANAGER AS A LIKELY CAREER OPPORTUNITY FOR THE
GRIEVOR AND THAT WAS MOST LIKELY RELATED TO THE DECEMBER 4, 1990
INCIDENT
ALLEGATION #4
* PRIOR TO DECEMBER 4, 1990, THE SUPERVISOR HAD TOLD TO THE
GRIEVOR THAT SHE WAS HIS FAVOURITE, BUT FOLLOWING DECEMBER 4,
1990, THE SUPERVISOR FOUND COMPLAINTS WITH HER WORK AND
TREATED HER IN A MANNER WHICH WAS UNACCEPTABLE TO HER IE WHEN
THE GRIEVOR WAS OFF SICK FOR SURGERY ON HER NOSE,
THIS ALLEGATION IS SIMILAR TO ALLEGATION #3 AND I FIND THAT ON THE
BALANCE OF PROBABILITIES THAT THE SUPERVISOR WAS LESS TOLERANT
TOWARD THE GRIEVOR AND CRITICIZED HER WORK MORE OFTEN
Page 21
ALLEGATION tIS
* PRIOR TO DECEMBER THE SUPERVISOR ACTED ON HER SUGGESTIONS
BUT FOLLOWING DECEMBER 4, 1990, THE SUPERVISOR IGNORED HER
SUGGESTIONS,
AGAIN THIS ALLEGATION IS SIMILAR TO #3 AND #4 ABOVE AND I FIND ON
THE BALANCE OF PROBABILITIES THAT THE SUPERVISOR DID NOT ACT UPON
SUGGESTIONS PUT FOR~ARD BY THE GRIEVOR AND THERE IS NO EXPLANATION
~
PUT FOR~ARD THAT WOULD RESOLVE THIS
ALLEGATION t/6
( * THE SUPERVISOR CALLED THE GRIEVOR A "BITCH" THREE TIM,ES IN
A SUPERVISORY MEETING IN MAY OR JUNE, 1991,
~:,.- TWO WITNESSES HAVE CORROBORATED THAT THE SUPERVISOR USED THE WORD
"BITCH" IN THIS MEETING IN REFERENCE TO THE GRIEVOR I FIND THAT
THE SUPERVISOR DID ON THE BALANCE OF PROBABILITIES CALL THE GRIEVOR
A "BITCH" IN MAY OR JUNE OF 1991
ALLEGATION tll
* HER PERFORMANCE APPRAISALS PRIOR TO DECEMBER 4, 1990' WERE
EXCELLENT BUT FOLLOWING DECEMBER 4, 1990 ALTHOUGH THE GRIEVOR
FELT HER PERFORMANCE WAS GOOD TO EXCELLENT BUT SHE DID NOT GET
POSITIVE FEEDBACK FROM THE SUPERVISOR,
THE FORM OF THE PERFORMANCE APPRAISAL HAD CHANGED THE GRIEVOR WAS
RATED AS HIGH ON THE PERFORMANCE APPRAISAL AS WAS POSSIBLE I HAVE
FOUND NO EVIDENCE TO SUPPORT THAT THE SUPERVISOR HARASSED THE
GRIEVOR THROUGH NEGATIVE PERFORMANCE APPRAISALS
ALLEGATION t/8
* THE GRIEVOR STATED THAT SHE BELIEVES THAT THE SUPERVISOR
HAS DISPLAYED A PATTERN OF HARASSMENT INVOLVING OTHER FEMALE
STAFF MEMBERS
\
Page 22
TWO OF THE WITNESSES (WITNESS E AND G) WHICH THE GRIEVOR NAMED
STATED THEY WERE NOT SUBJECTED TO SEXUAL HARASSMENT BY THE
SUPERVISOR TWO OTHER WITNESSES (WITNESS A AND D) STATED THAT THEY
FELT THEY WERE SUBJECTED TO SEXUAL HARASSMENT BY THE SUPERVISOR
THESE INCIDENTS OCCURRED IN 1984 AND 1991 YEARS AGO AND CONSEQUENTLY
I MAKE NO SPECIFIC FINDINGS WITH RESPECT TO THESE PARTICULAR
ALLEGATIONS, I DO CONSIDER THE EVIDENCE OF THOSE WITNESSES TO BE
SIMILAR FACT EVIDENCE TO THAT OF THE GRIEVOR ,~
The Employer accepted the allegations the summarised version of
which was recited in the Anderson Award, and is recited here for
purposes of comparison to the Santos allegations
DURING THE PERIOD OF TIME I WAS A STUDENT I ASKED BILL FAWCETT TO
FOLLOW ME IN HIS CAR TO NEINIEKE MUFFLER SHOP I DROPPED OFF MY CAR
THERE AND GOT A RIDE BACK TO WORK WITH BILL FAWCETT
THERE WAS SOMETHING GOING ON AT THE BEACH WITH CAMERAS AND ACTIVITY
SO WE PULLED INTO THE PARKING LOT AT THE BEACH, TO WATCH WHAT WAS
GOING ON AND TO DECIDE IF AND WHERE WE WERE GOING TO HAVE LUNCH
I DON'T REMEMBER HOW THE CONVERSATION STARTED, BUT MR FAWCETT SAID
,"
SOMETHING LIKE "SO YOU'RE INTERESTED IN OLDER MEN YOU SHOULD PICK
AND CHOOSE YOU'RE VERY PRETTY" HE BRUSHED MY HAIR FROM MY CHEEK
I RESPONDED BY SUGGESTING THAT IT WAS TIME TO GET BACK I FELT UN-
COMFORTABLE BUT 1 DID NOT FEEL SEXUALLY THREATENED OR THAT I WAS
BEING HIT UPON
THE REASON I FELT UNCOMFORTABLE WAS NOT BECAUSE I FELT SEXUALLY
THREATENED BUT DID NOT WANT TO SPEAK ANY MORE OF MY PRIVATE LIFE
AS WE WERE DRIVING BACK HE PLACED HIS HAND ON MY KNEE FOR A SHORT
MOMENT NOT IN THE WAY OF SEXUAL ADVANCEMENT BUT TO REINFORCE A POINT
HE WAS MAKING IN CONVERSATION THIS GESTURE DID NOT MAKE ME FEEL
UNCOMFORTABLE IN ANY WAY
Page 22 .
TWO OF THE WITNESSES (WITNESS E AND G) WHICH THE GRIEVOR NAMED
STATED THEY WERE NOT SUBJECTED TO SEXUAL HARASSMENT BY THE
SUPERVISOR TWO OTHER WITNESSES (WITNESS A AND D) STATED THAT THEY
FELT THEY WERE SUBJECTED TO SEXUAL HARASSMENT BY THE SUPERVISOR
THESE INCIDENTS OCCURRED IN 1984 AND 1991 YEARS AGO AND CONSEQUENTLY
I MAKE NO SPECIFIC FINDINGS WITH RESPECT TO THESE PARTICULAR
ALLEGATIONS, I DO CONSIDER THE EVIDENCE OF THOSE WITNESSES TO BE
SIMILAR FACT EVIDENCE TO THAT OF THE GRIEVOR
~
The Employer accepted the allegations the summarised version of
which was recited in the Anderson Award, and is recited here for -
purposes of comparison to the Santos allegations
)
DURING THE PERIOD OF TIME I WAS A STUDENT I ASKED BILL FAWCETT TO
FOLLOW ME IN HIS CAR TO NEINIEKE MUFFLER SHOP I DROPPED OFF MY CAR
THERE AND GOT A RIDE BACK TO WORK WITH BILL FAWCETT
THERE WAS SOMETHING GOING ON AT THE BEACH WITH CAMERAS AND ACTIVITY
SO WE PULLED INTO THE PARKING LOT AT THE BEACH, TO WATCH WHAT WAS
GOING ON AND TO DECIDE IF AND WHERE WE WERE GOING TO HAVE LUNCH
I DON'T REMEMBER HOW THE CONVERSATION STARTED, BUT MR FAWCETT SAID
SOMETHING LIKE "SO YOU'RE INTERESTED IN OLDER MEN YOU SHOULD PICK
AND CHOOSE YOU'RE VERY PRETTY " HE BRUSHED MY HAIR FROM MY CHEEK
I RESPONDED BY SUGGESTING THAT IT WAS TIME TO GET BACK I FELT UN-
COMFORTABLE BUT I DID NOT FEEL SEXUALLY THREATENED OR THAT I WAS
BEING HIT UPON
THE REASON I FELT UNCOMFORTABLE WAS NOT BECAUSE I FELT SEXUALLY
THREATENED BUT DID NOT WANT TO SPEAK ANY MORE OF MY PRIVATE LIFE
AS WE WERE DRIVING BACK HE PLACED HIS HAND ON MY KNEE FOR A SHORT
MOMENT NOT IN THE WAY OF SEXUAL ADVANCEMENT BUT TO REINFORCE A POINT
HE WAS MAKING IN CONVERSATION THIS GESTURE DID NOT MAKE ME FEEL
UNCOMFORTABLE IN ANY WAY
~--
Page 23
THERE WERE NO OTHER INCIDENTS WHEN MR FAWCETT TOUCHED ME HE OFTEN
COMPLIMENTED MY APPEARANCE BUT DID NOT MAKE ME FEEL UNCOMFORTABLE
AND I WAS NOT OFFENDED BY THIS IN ANY WAY I APPRECIATED HIS
COMPLIMENT
The signed stat.ement of Witness D provided to the Investigator
states as follows
I AM EMPLOYED AS A RADIO OPERATOR WITH THE EMERGENCY HEALTH SERVICES ~
AT THE MINISTRY OF HEALTH
I FORMERLY WORKED AT GEORGIAN CACC WHERE MR BILL FAWCETT WAS THE
MANAGER I WAS THE SUCCESSFUL CANDIDATE FOR A COMPETITION AT
GEORGIAN CACC FOR A FULL-TIME CLASSIFIED POSITION IN APPROXIMATELY
APRIL OF 1990
PRIOR TO THE ABOVE-NOTED COMPETITION I CALLED MR FAWCETT TO DISCUSS
THE COMPETITION WITH HIM I ADVISED HIM THAT I WOULD BE TRAVELLING
TO THE AREA TO CHECK OUT HOUSING AND SCHOOLS AND THAT I MIGHT DROP
IN TO SEE THE C A C C CENTRE
WHEN I VISITED THE AREA I SAT AND CHATTED WITH MR FAWCETT IN HIS
OFFICE FOR ABOUT AN HOUR WE DISCUSSED, AMONG OTHER THINGS, THAT
CERTAIN STAFF WOULD BE LEAVING GEORGIAN CACC AND THERE WAS THE
POSSIBILITY OF A SUPERVISORY POSITION BECOMING VACANT
MR FAWCETT ASKED ME WHAT I WAS DOING LATER IN THE EVENING AND
SUGGESTED THAT HE WOULD COME OVER TO MY MOTEL AROUND 9 P M THE
PURPOSE OF THIS MEETING WAS TO DISCUSS QUESTIONS THAT WOULD BE ON
THE COMPETITION THIS WAS SUGGESTED BY MR FAWCETT
MY HUSBAND HAD ACCOMPANIED ME ON THIS TRIP WHEN WE RETURNED TO THE
MOTEL THAT EVENING, MR FAWCETT WAS WAITING IN THE LOBBY I
INTRODUCED MY HUSBAND, BUT IT WAS MY IMPRESSION THAT MR FAWCETT WAS
Page 24
SURPRISED TO SEE HIM MR FAWCETT VISITED WITH MYSELF AND MY
HUSBAND IN OUR HOTEL ROOM FOR APPROXIMATELY 1 1/2 HOURS
I MENTIONED THE COMPETITION QUESTIONS SEVERAL TIMES MR FAWCETT
DID NOT DISCUSS THE COMPETITION QUESTIONS, HE JUST PUT IT OFF AND
SAID YOU'LL BE OK
ONE OF THE THINGS I REMEMBER MR FAWCETT DISCUSSING WITH ME AND MY
HUSBAND WERE THE SEXUAL HARASSM~NT CHARGES AGAINST MR .~
FAWCETT BY
TRISH COURTENAY MR FAWCETT INDICATED THAT THESE WERE A "CROCK "
MR FAWCETT ASKED MY HUSBAND IF HE COULD FIND SOMETHING TO DO FOR 3
OR 4 HOURS THE NEXT DAY BECAUSE HE WANTED TO SHOW ME THE HUMAN
RESOURCES OFFICE IN PENETANG AND OTHER AMBULANCE BASES IN THE AREA
I THEN CALLED MR FAWCETT THE NEXT DAY TO CHECK THAT EVERYTHING WAS
OK FOR THE TRIP TO PENETANG I GOT THE IMPRESSION THAT SOMETHING
WAS WRONG MR FAWCETT'S MANNERISM ON THE PHONE WAS TOTALLY
DIFFERENT I FELT THAT HE WAS COOL AND BLUNT MR FAWCETT
EXPLAINED THAT SOMETHING HAD COME UP AND HE COULDN'T MAKE THE TRIP
HE TOLD ME THAT I COULD COME BACK DOWN TO THE OFFICE IF I WANTED TO
I DECLINED TO DO SO
t!
THERE WAS NO FURTHER CONTACT WITH MR FAWCETT TILL THE INTERVIEW FOR
THE COMPETITION I WAS SUCCESSFUL IN THAT COMPETITION
ABOUT ONE MONTH AFTER I HAD BEEN WORKING AT GEORGIAN CACC MR
FAWCETT CALLED ME AT HOME HE ASKED ME WHY I DIDN'T INVITE HIM UP
TO MY HOUSE FOR COFFEE HE CALLED ONCE EVERY COUPLE OF WEEKS FOR
ABOUT 6 MONTHS AND MADE THE SAME SUGGESTION I NEVER INVITED MR
FAWCETT TO MY HOME I TOLD MR FAWCETT THAT I WAS VERY BUSY, OR I
DIDN'T WANT TO, OR I JUST KIND OF LAUGHED
Page 25
ON SEVERAL OCCASIONS HE INVITED ME TO HIS OFFICE ,AND AGAIN SUGGESTED
THAT I SHOULD INVITE HIM UP TO MY HOME FOR COFFEE I FELT THAT MR
FAWCETT WAS "COMING ON TO ME "
I
I NEVER FELT THREATENED FOR MY JOB_EVEN THOUGH 1 WAS ON PROBATIONARY
STATUS
MR FAWCETT ALSO HAD A HABIT OF CALLING BACK TO THE CENTRE SHORTLY
~
AFTER HE HAD LEFT FOR THE DAY AND ENGAGING IN SMALL TALK THAT WAS
NOT RELATED TO OFFICE WORK IN ANY WAY I FOUND THIS BEHAVIOUR VERY
UNUSUAL
ON ANOTHER OCCASION MR FAWCETT CALLED ME INTO HIS OFFICE AND ASKED
ME IF I WAS GOING TO APPLY FOR A SUPERVISDRY POSITION I CAN'T
.;;; REMEMBER HIS EXACT WORDS BUT HE INDICATED SOMETHING LIKE "IF YOU
SCRATCH OUR BACKS WE'LL SCRATCH YOURS" I SAID "FINE" AND WALKED
OUT OF THE OFFICE
I FELT THAT THIS W~S A THREAT AND A SEXUAL INVITATION I FELT THAT
MR FAWCETT WAS iNSINUATING THAT IF I "CAME ACROSS" I WOULD GET THE
JOB I NEVER CONFRONTED MR FAWCETT ABOUT THIS I WONDERED IF I
DID NOT GET THE JOB BECAUSE I WAS NOT BEING MORE "FRIENDLY" TO MR
FAWCETT
I SAT THE INTERVIEW FOR THE JOB BUT IT WAS AWARDED TO LLOYD
PHILLIPS
AFTER THE COMPETITION I CHOSE TO AVOID MR FAWCETT AS MUCH AS
POSSIBLE AND LIMITED OUR CONVERSATIONS TO WORK ONLY THERE WAS
STRESS RELATED TO THE JOB OF JUST HAVING TO DEAL WITH THIS GUY (MR
FAWCETT ) YOU ALWAYS WONDERED WHAT HE WOULD DO NEXT
I DECIDED TO TRANSFER TO LINDSAY BECAUSE I DID NOT WANT TO WORK WITH
MR FAWCETT HE HAD STOPPED BOTHERING ME BUT I SAW THE SAME PATTERN
BEING REPEATED WITH OTHER EMPLOYEES FOR EXAMPLE, I NOTICED THAT HE
Page 26
WAS PHONING [NAME DELETED] A NEW EMPLOYEE AT WORK AFTER JUST
LEAVING I WAS TIRED OF IT AND I JUST WANTED OUT
I WAS NOT AWARE OF SEXUAL HARASSMENT I HAD NOT SEEN ANY MATERIAL
I
ON SEXUAL HARASSMENT I FELT UNKNOWLEDGEABLE AND HAD NEVER HAD TO
DEAL WITH THIS TYPE OF BEHAVIOUR BEFORE I NEVER REPORTED TO ANYONE
IN MANAGEMENT
The relevant portion of the statement of Witness A is as follows .~
I AM EMPLOYED AS A COMMUNICATIONS OPERATOR WITH THE EMERGENCY HEALTH
SERVICES AT THE MINISTRY OF HEALTH AT GEORGIAN CENTRAL AMBULANCE
COMMUNICATIONS CENTRE
MY MANAGER IS MR BILL FAWCETT
ON OCTOBER 9, 1984 APPROXIMATELY, I HAD MY FIRST MEETING WITH MR
)
FAWCETT DURING THIS MEETING MR FAWCETT NOTED THAT I WAS A SINGLE
PARENT AND ASKED ME ABOUT WHO I WAS DATING AND IF iT CAUSED ANY
PROBLEMS AT WORK AT THE TIME I WAS DATING AN ATTENDANT FROM
BARRIE fvJR FAWCETT THEN PROCEEDED TO ASK ME WHO THE BOSS WAS WHEN
MY FRIEND AND I ARE TOGETHER AND WHO GAVE THE DIRECTIONS HE WINKED
AND ME AND STATED SOMETHING LIKE IF I HAD TO GIVE HIM ANY DIRECTIONS
THEN TO DO SO I CONSTRUED "WHEN WE WERE TOGETHER" TO MEAN WHEN WE
WERE IN BED
AT THIS POINT I LEFT THE OFFICE I WAS TAKEN ABACK BY HIS COMMENTS
I HAD NEVER HAD AN EXPERIENCE OF THIS NATURE BEFORE I FOUND HIS
COMMENTS TO BE INAPPROPRIATE AND OF A PERSONAL NATURE I DIDN'T
THINK THAT HE SHOULD BE ALLOWED TO ASK ME THESE TYPES OF QUESTIONS
I FELT THESE COMMENTS WERE OF A SEXUAL NATURE
AFTER I LEFT I WONDERED IF I HAD MISINTERPRETED THE COMMENTS OR THAT MAYBE
HE (FAWCETT) WAS JUST JOKING
------------
,.
Page 27
I DECIDED TO GO BACK AND SEE MR FAWCETT I THOUGHT THAT WE HAD
STARTED ON THE WRONG FOOT HE CONTINUED TO ASK QUESTIONS ABOUT MY
PERSONAL LIFE L TOLD HIM THAT I DIDN'T THINK HE SHOULD BE SAYING
SOME OF THE THINGS THAT HE HAD SAID I WAS CONCERNED ABOUT MY
POSITION AS AN EMPLOYEE I NEEDED THE WORK
SHORTLY AFTER THIS MEETING JANICE WILTON AND PATRICIA COURTENAY
-,
APPROACHED ME AND ASKED ME IFMR FAWCETT HAD SAID ANYTHING OUT OF
LINE I TOLD THEM WHAT HAD HAPPENED IN THE OCTOBER 26, 1984
MEETING THE THREE OF US HAD A MEETING WITH FRED RUSK, THE REGIONAL
MANAGER OF REGION #3 HE ASKED US TO WRITE EVERYTHING THAT WE COULD
REMEMBER HE TOLD US THAT HE HAD TO TELL MR FAWCETT THAT HIS
COMMENTS 'WERE INAPPROPRIATE I UNDERSTAND THAT JANICE AND PATRICIA
HAD A MEETING WITH MR FAWCETT I TOLD MR RUSK THAT I HAD ALREADY
TOLD MR FAWCETT THAT HIS COMMENTS WERE INAPPROPRIATE THERE WAS
NEVER ANY OTHER FOLLOW-UP ON THIS OR THE WRITTEN STATEMENT THAT I
PROVIDED TO MR RUSK AT THE TIME TO THE BEST OF MY KNOWLEDGE MR
RUSK RETAINED A COpy OF MY WRITTEN STATEMENT
MR FAWCETT HAD A HABIT OF PUTTING HIS HAND ON YOUR SHOULDER AND DID
THIS TO ME I NEVER TOLD HIM NOT TO DO IT AND I DIDN'T THINK ABOUT
IT AT THE TIME I DIDN'T LIKE IT WHEN HE DID THIS, IT MADE ME FEEL
UNCOMFORTABLE
ON THURSDAY OCTOBER 11, 1984 I MET WITHMR FAWCETT AGAIN TO RESOLVE
OUR DIFFERENCES FROM THE MEETING OF OCTOBER 9, 1984 I NEEDED THE
JOB BECAUSE OF MY CHILDREN MR FAWCETT MADE THE STATEMENT "I CAN
MAKE YOU OR BREAK YOU It HE ASKED ME HOW BADLY I NEEDED THE JOB I
TOOK THIS STATEMENT TO MEAN THAT I WOULD PROBABLY HAVE TO DO
SOMETHING I DIDN'T WANT TO DO TO GET THE JOB I TOOK THE STATEMENT
[SIC] THAT I MIGHT HAVE TO GO TO BED WITH HIM TO GET THE JOB THERE
WAS NO OTHER CONCLUSION THAT I COULD HAVE COME TO I WAS DOING A
GOOD JOB AND THERE WAS NOTHING ELSE I COULD DO TO KEEP THE JOB
Page 28
IN MAY OF 1985, FOLLOWING MEDICAL PROBLEMS BECAUSE OF A HEAD INJURY
I HAD BEEN REQUESTED TO RETURN MY UNIFORM TO GEORGIAN CACC I
STOPPED INTO THE OFFICE TO QISCUSS THE POSSIBILITY OF RETURNING TO
WORK AFTER MY MEDICAL PROBLEMS WERE RESOLVED HE SAID TO ME I TOLD
YOU THAT I WOULD WIN THIS REFERRED BACK TO THE STATEMENT WHEN HE
SAID I WOULD MAKE YOU OR BREAK YOU HE WAS NOW SAYING TO ME THAT HE
HAD DONE IT THIS TIME I LEFT THE OFFICE IN TEARS, IT WAS NOT THE
~
FIRST TIME I LEFT HIS OFFICE IN TEARS I DECIDED TO GO BACK AND TRY
TO TALK TO HIM ONE MORE TIME
.-'
I SAID TO HIM THAT I WAS CONCERNED ABOUT COMING BACK TO WORK AT
THIS POINT IN TIME HE LEFT HIS DESK AND WALKED BEHIND MY CHAIR AND
PUT HIS HAND ON MY SHOULDER AND HE HAD STARTED MOVING DOWN THE FRONT
OF MY CHEST AS HE WAS DOING THIS HE SAID MAYBE WE CAN WORK
SOMETHING OUT
AT THIS POINT IN TIME I WAS UPSET WITH HIS REMARKS AND ACTIONS I
QUICKLY STOOD UP AND HIT HIM IN THE SIDE OF HIS FACE WITH MY FIST
AND LEFT THE OFFICE ALTHOUGH THE DOOR WAS PARTIALLY O~EN TO HIS
OFFICE I'M NOT SURE IF ANYONE MAY HAVE HEARD THE SLAP I NEVER
SWORE AT HIM, I NEVER GOT A LETTER OF APOLOGY FROM HIM OR A NOTE
MADE ON MY FILE ABOUT THIS INCIDENT HE NEVER ATTEMPTED TO CALL ME
ABOUT THE INCIDENT AGAIN I DID NOT REPORT THIS INCIDENT TO ANYONE
AS A RESULT OF THIS I HAVE NEVER BEEN IN THE OFFICE OF MR FAWCETT
WHEN I CLOSED THE DOOR [SIC], IF WE WERE ALONE HE ONCE ASKED ME IF
I
I WAS EVER GOING TO CLOSE THE DOOR AND I TOLD HIM NO
AFTER MY MEDICAL PROBLEMS WERE RESOLVED I COMPLETED THE AMBULANCE
ATTENDANT COURSE IN THE FIRST PART OF 1988 I PUT IN AN APPLICATION
FOR A JOB I HEARD FROM THE STAFF AT THE CENTRE THAT THEY WERE
SHORT-STAFFED I CALLED MR FAWCETT 3 OR 4 TIMES TO SEE IF THERE
WAS ANY WORK AND WAS ALWAYS TOLD THAT HE DIDN'T NEED ANYONE
Page 29
IN AUGUST OF 1988 HE CALLED ME AT FIVE MINUTES TO 9 00 IN THE
MORNING AND ASKED IF I WAS STILL INTERESTED IN WORK I WENT TO WORK
THAT SAME DAY BUT BY THIS TIME THE CENTRE WAS EXTREMELY SHORT- 1
STAFFED IN MY OPINION, THE ONLY REASON I WAS CALLED IN IS BECAUSE
HE WAS DESPERATE FOR HELP
I WAS SUCCESSFUL IN A COMPETITION IN DEC OF 1988 TWO OTHER PEOPLE, ~
LLOYD PHILLIPS AND ALLEN KELLY WERE HIRED AS WELL THE SECTION
COMMITTEE WAS COMPOSED OF BILL HIGGINSON, SANDRA CALDWELL AND BILL
FAWCETT
I WAS APPOINTED TO THE CLASSIFIED STAFF AFTER SUCCESSFULLY
COMPLETING MY PROBATIONARY PERIOD
I DIDN' TAPPLY FOR A SUPERVISOR'S POSITION BECAUSE THAT WOULD
INCREASE MY CONTACT WITH BILL FAWCETT WHEN YOU ARE A SUPERVISOR
YOU ORDINARILY HAVE TO WORK MORE CLOSELY WITH BILL IN HIS OFFICE
I HAVE FELT THAT MY PERFORMANCE EVALUATIONS WERE ACCURATE I WAS
NOT DISSATISFIED WITH THEM, BUT BILL STILL ACTS AS IF THERE ARE
PROBLEMS
In her statement, Witness G referred to a situation in which she felt that
Mr Fawcett "would have made a pass," if her husband had left the room,
however she acknowledges that her perception may have been incorrect She
does state that
SOME OF THE OTHER STAFF AT THE CENTRE CALLED ME "THE GOLDEN GIRL "
THEY THOUGHT I COULD DO NO WRONG I WAS CALLED THIS BECAUSE OF THE
WAY I WAS TREATED BY MR FAWCETT HE WAS THERE IF SOMETHING
HAPPENED OR I NEEDED HELP IF THE AMBULANCE DRIVERS COMPLAINED MR
FAWCETT WOULD ALWAYS STICK UP FOR ME I FELT THAT MR FAWCETT'S
ATTITUDE TOWARDS ME CHANGED AFTER I GOT PREGNANT I FELT A COLDNESS
- AND THE ATTENTION THAT WAS THERE HAD GONE
Page 30
A SECOND STAFF MEETING WAS HELD AND THE RESULT OF THE MEETING WAS
1 FAWCETT WOULD BE SUSPENDED FOR 30 DAYS WITHOUT PAY,
2 LETTER PLACED IN HIS FILE,
3 TRAINING PROGRAM BE DEVELOPED AND PROVIDED TO FAWCETT,
4 TRAINING PROGRAM WOULD BE DEVELOPED FOR ALL MANAGERS
I have quoted from the Anderson decision extensively to show how
two individuals within the same Ministry accused over events that
occurred over a similar time frame, and which involved hearings .-
before the G S B for part of the same period were treated so
differently The recommended suspension above was further reduced ~
to 10 days, and at the Hearing Mr Armstrong defended the reduction
as recited at Pages 25-26 of the Anderson Award.
.. MR ARMSTRONG TESTIFIED THAT HE DID NOT GIVE "MUCH WEIGHT" TO MR
FAWCETT'S DENIALS HE DID NOT ACCEPT THAT MR FAWCETT DID NOT ENGAGE IN
SEXUAL HARASSMENT BUT RATHER, ACCEPTED THE ,FINDINGS OF THE INVESTIGATOR
IN DISCUSSION WITH MR BRAND AND AN EMPLOYEE IN PERSONNEL, IT WAS
DETERMINED THAT A TEN-DAY SUSPENSION WAS APPROPRIATE A LONGER SUSPENSION
WAS CONSIDERED TO BE UNDULY HARSH MR ARMSTRONG REFERRED TO THE LOSS OF
INCOME ASSOCIATED WITH A TEN-DAY SUSPENSION HE ALSO REFERRED TO THE FACT .
THAT THERE HAD BEEN NO FURTHER INCIDENTS FOLLOWING THE LETTER OF
COUNSELLING THAT HE HAD ISSUED FOLLOWING RECEIPT OF THE COURTENAY
DECISION AS WELL, HE INDICATED THAT IT WAS HIS UNDERSTANDING THAT THE
MAXIMUM SUSPENSION THAT COULD BE IMPOSED UNDER THE PUBLIC SERVICE ACT WAS
TWENTY WORKING DAYS HE REFERRED TO MR FAWCETT'S LENGTHY SERVICE HE
TESTIFIED THAT HE CONSIDERED A TRANSFER BUT DID NOT CHOOSE THIS OPTION
BECAUSE MR FAWCETT WISHES TO REMAIN IN THE WORKPLACE
It is my view that no-one was well served by the manner in which
the Ministry pursued this particular case By any standard, the
allegations against Mr Fawcett were far more serious than those
against Mr Santos. The very different approaches taken against
these two individuals does more than anything else to expose the
Ministry's hypocrisy in dealing with this very serious problem.
.
;,
Page 31
The two approaches'show that the Ministry's ,approach is not one of
even-handedness The Ministry totally ignored the wishes of Ms
Cruickshank, who clearly did not feel the workplace was poisoned
,.
That was known very early when the allegations came to light Ms
Cruickshank said clearly that a four-day suspension and a letter of
apology would suffice. Certainly she was prepared to return to the
workforce absent even a commitment she would not have to work with
Mr Santos. ~
There is certainly no reason to believe that could not have been
accomplished through something far short of discharge
- In my view, serious harm has been done to the very dedicated and
sincere efforts of many who have laboured long and with
determination to ensure the workplace is free of sexual harassment.
The heavy-handed manner in which the Ministry treated Mr. Santos
compared with Mr Fawcett clearly illustrates there is a different
standard applied for management employees when it comes to sexual
harassment Mr Fawcett's actions, at least by the time the
Anderson allegations began to come to light, were fully accepted by
Management. I believe the lack of a meaningful enquiry into the
events of this case, particularly as it relates to any sincere
effort to get Mr Santos's side of the story while completely
ignoring Ms Cruickshank's wishes, will deter not only Ms
Cruickshank, but others from coming forward at this Ministry to
raise allegations in the future Employees, both the harassed and
the harassers, and those who work with them,must feel comfortable
that allegations of this nature will be placed in their proper
perspective Employees who feel threatened must be encouraged to
step forward early, comfortable in the knowledge their concerns
will be addressed and the penalty can be something less than
discharge
I-
.
;,
Page 32
In this instance, the last thing Ms Cruickshank wanted was that
someone would be fired as a result of her allegations For its
part, the Ministry, rather than conducting an investigation which
I
could reasonably be deemed fair, chose instead to embark on a
course which ignored Ms. Cruickshank's wishes and, at the same
time, denied the opportunity to Mr Santos to speak to those
charges at an early date I am not at all concerned with Ms
Cruickshank's delay from July to October 9, however the delay from
that date to December before Santos heard of the allegations is
completely unacceptable There were no incidents involving anyone
other than Ms. Cruickshank Through innuendo, hearsay and outright
rumour, the Ministry sullied the reputations of the entire security
staff, Dr Harrison andMs McK~own, without calling any evidence
~1. to substantiate what could only be termed idle speculation.
I don't accept, even for a moment, that the Ministry's failure to
call Ms. Stuart, Mr. Frost or Ms Sue Ellen, or its failure to
introduce the Investigator's Report was an oversight Certainly
our concerns about the inadequacy of the Ministry's evidence as the
case evolved could not have been made more clear Between the
Anderson, Courtenay and this case, 52 days were spent ~n hearings
at tremendous cost to the tax payer at a time when hospital beds
are closed, staff are forced to abide by wage reductions imposed by
the Social Contract, and people are waiting for treatment, all
. It all seems ludicrous,
because of a lack of adequate resources
especially when the Ministry appears to be arguing out of both
sides of its mouth
In my view, the witnesses who testified should be commended for
their efforts to enlighten the Board about the matters on which
they were called to give evidence That much of their evidence was
not useful to our arriving at a conclusion on Mr. Santos's guilt or
innocence should cast no reflection on them
--..
I
.
~
Page 33
The onqs to prove sexual harassment in the workplace should be no
different from the requirement to prove any serious offense The
concept of progressive discipline should not be applied any
differently in these types of cases from any others It has worked
in correcting behaviour for other violations, and there is absolu-
tely no reason to believe it would not do so here. I
This proceeding was extremely difficult I, as a Member, am not
blameless in making that so. While I now wish I had handled some ~
matters differently in that I wish I had exhibited a little more
composure at times, I do not, for a moment, regret raising the
concerns which I did My role as the Employee Nominee is to ensure
that the griever's right to express himself is protected For his
part, Mr O'Toole is charged with the same responsibility for
Management. I don't think either of us has had any occasion in the
past to exercise that right with such vigour. I hope neither of us
will be required to do so again.
Dated at To.ronto, 01ttario this 28th day of April, 1995"
~~
Edward E Seymour, Employee Nominee
ope1u 343
- ----=-
_ ~ ;i
.~ - 't.
"^',
Pursuant to the Award Re GSB 0974/92 OPSEU (G Santos)-and-The
Crown 1n Right of Ontario (Mi.nistry of Health)
HEARD BEFORE HARRY J WAISGLASS Vice-Chatr.,Gri.evance Settlement Board
ED SEYMOUR, Union MemberJ and MICHAEL O'TOOLE, Employer Member
................**.................
Vice-Chatr's Response to Mr. O'Toole's Di.ssent n'
Mr O'Toole: suggests that I had acted improperly or that my judgment was
improperly influenced when he states at the top of page 26 of his Dissent
"I believe t!J1S V'ir:e-Chatl~ may have anowed hlmsel f to become frustrated with
Ms Qu\ck's strategy {for the conduct of her case} and then may have let that .~
frustration tnfluence his view of certain of the evidence called by Ms
Qui.ck J' It should not be necessary for me to refute his- unfai. r accusotion and
his baseless cr1tictsms The Award itself speaks for the integrity of my
judgments It 15 my best defenceJ if a defence is needed.
I appreciate Mr O'Toole's acknowledgement that I was "careful to respect
Ms QUIck's right to determine the conduct or her case" [page 25J bottom]
Mr O'Toole knows that I deliberQtely gave Ms Quick greater leeway 1n the
special CIrcumstances of this case than I would In other cIrcumstances,
becQuse I accepted her representations regarding the special difflculties for
counsel in proving a CQse of sexuQl harassment, and also because I am aware of
the perceptl.lal differences between moles and females on issues of judi.cial
fairness in cases involving sexual wrong-doing
Mr O'Toole can not deny that on several occasions I reminded Ms Quick of her
responsibllity as counsel not to take unfair advantage of her right to present
her case as she sees fit Partlcularly, I cauttoned her not to woste valuable
hearlng tlme on eVldence that is not relevant to the issuesJ and on evidence
such as she herself, an experienced counsel, would know could not meet the
well-establ\shed standards for proof required in a dismissal case I hove no
doubt at all that Ms Quick was fully aware of her responsibil1ty and
accountability for the manner in WhlCh she exerctsed her right to conduct the
Employer's case as she saw fi. t, part ic:ularly i.n the spec:ial ci rcumstances of
thlS case of alleged sexual misconduct
I
~
:
2
During the hearings I expressed my d1sapproval of the time wasted h€Qr1ng
Employer witnesses testify on the haraS5ment policies, after we had already
heard MI~ Coleman say very clearly and precisely that the Unlon accepted the
,
Employer"s documentary evi..dence on the relevant policies whl.ch V'lere i.n place
at the time of the dismissal, and that those policies are not dlsputed
Further, I admit that when I upheld Mr Coleman's challenges on the relevance
of post-dlsmissal documentary evidence, on harassment policles promulgated and -~
publtctzed after the date of Santos's d\sml.ssal, I expressed the Vlew that
valuabl~ hearing ti.me was wasted tn presenti..ng and argutng about such
obviously non-relevant post-dismtssal evidence
I acknowledge that I commented olso on the waste of valuable hearing tim~ in
., an unnecessary and unsuccessful effort to prove that thegri.evor had received
prlor l.nfOrmatlon on the Employer's harassment policies, even after Union
counsel had lnformed us that the Uni.on and the grievor accepted as fact that
sexual harassment i.s forbidden by both the collective agreement and the Human
Rights Code, and that it was unnecessary for the Employer to prove the grievor
knew sexual harassment was improper and puni.shable
.
No t'easonable person could possi.bly regard my rul ings and comments on the
conduct of the case as anything but 1mpartial It is. i.ncomprehensi.ble how Mr
otToole could perceive any impropri.ety ln my conments I do not clalm
1nfallibility,but tf I had erred in any of my rullngs or detlslons, my errors
would not be founded i.n such improper i.nfluences as he suggests I strongly
resent Mr O'Toole's irresponsible charge that I "may have let that
frustrat\on" {more accurately described as "diffi.cult and unusual problems"
presented by "Ms Qu\ck's strategy>>} influence my view of the evidence called
by MS QuiCk
It 15 tt'responstble to make such a serious charge wlthout a httle of credlble
evi.dence to support it.
.
I
.
I
I 3
I Mr O'Toole alleges that my Ufrustration seems apparent" in the comments I
I
made at page 11 of the Award "regarding M~. QuiCk's reasons for delayu19
calling Cruickshank until the end of her case." [p 26J I acknowledge that I
was critical of the delaYJ but for the very good reasons given below Thet'c is
nothing in my comments to support his allegations Mr O'Toole knows very
well that I did nothing to prevent Ms Quick from exercising her dension to
'delay co111n9 for CrulckshankJs testimony unttl the very end of her case He
~
knows that I d\d not issue any d\rectlons bearing on her decisions concerning
whi.ch witnesses she chose to present and 1.n what order The choices she made
are clearly her own
I acknowleage further that! expressed legitimate concerns that Ms Quick s
declsi.on to defer calling the complainant delayed heoring the particulars of
the complaint, and that such delay impacted upon the ability of the defense to
cross-examine the Employer's witnesses on important evidence which the
Employer, very deliberately, had not yet produced I expressed concerns also
that the postponed production of the complainant's evidence impacts on the
defendant's right to cross-examine the prior witnesses on the complainant s
evidence, which in turn might prolong the hearings to undeslrable lengths
,
because it effects the right of the Union to re-call those witnesses for
further cross-examination on the complainant's subsequent testimony
Nevertheless, Ms Quick insisted and pers1sted in her dec1sion to call her
witnesses in the order she preferred I permitted her to do so 1n splte of my
expressed preferences and misgtvings, and over the expressed obJections of Mr
Coleman, which Mr Seymour supported emphatically, perhaps wlth more passlon,
at times, than oppropriate
Notwlthstandtng Mr O'Toole's objections to my finding Cru\ckshank "0
reluctant complainant and an uncomfortable witness ~'jho was d1.spleased and
upset by the prolonged process"J [Dissent, p 26 J the eVldence is that
Cruickshank very clearly, very often, and very convinc\ngty expressed her'
reluctance to file a formal complaint agai.nst Santos and to testify agmnst
him, as wetl as her opposition to his dismissal. Mr O'Toole's submiSS\On
"that any reluctance or discomfort shown by Cruickshank was completely
~
It
i
4
consistent with the test\mony of sexual harassment comptalnts 1n general"
is not be supported by the evidence, as the Award shows very clearly
There is no evidence that she feared any reprlsals from Santos for fillng a r
complaint against him Her reluctance to file a complaint and her discomfort
as a witness can not be connected logically, as Mr O'Toole wonts us to
be 1 i.eve, "with sexual harassment complaints in general'~ [p 26J Thi.s argurnent
finds no support at 01\ in the particular facts of this case
-
Mr O'Toole challenges the majority's ftnd\ng that "there was no contact by
Santos with Crui.ckshank's breasts or, i.f there was, it was ''tnadvertent> ~ ..-,
[pages 14-18J Hi.s insi.stence that "there was nothlng lnadvertent (~bout the
movement~ seems to me strange and unbelievable
Paradoxically, it was Mr. O'Toole who had persuaded me that Ms Crui.ckshank's
contact with Ms. QUl.ck's breasts, 1.n the course of the demonstrot on, was
inadvertent He did this by correcting my initial impression that Ms Qu\.ck,
by her body movements. had i.nfluenced or caused the wi tl'less to move: her hands
from Ms. Quick's hlPS to her'Wa1st
.
After all witnesses were heard, but before hear\ng arguments, nnd \n the
<~,.. course of seektng to identify any differences among us in perc'~Pticns on the
~.....~.
evi.dence, I 'invtted the members to comment on my l.mpreSS 1011 thc:t t>1s QUIck, by
her bOdy movements during the demonstrati.on, may have led or encouraged Ms
Cruickshank to move her hands fr~n Ms QUlck's W01.st to her b r;;Qsts t-nr
O'Toole expressed hts preference to defer our del iberations en thi s yltest1.on,
along wi. th other evidential queshons, until after we heard 0 'r.uments of
counsel The panel agreed, and we accepted his proposal to (Jut to counsel th1.s
questi.on, along with the others, as they oppear on page 1~ of 115 Dh.sent
I deny that 1 saw "Ms Qu\ck's hands came In contact wit! Ms Cl'uid.shank's
hands and then guided Cruickshank's hands to her breasts llJ 18J Mr OToole
claims that this was Mr Coleman's reply to h1S quest10li QIVi that the "Vlce-
Chair stated he had observed such a thing on her ~art" I do not recall saYlng
this What I actu~lly said was misunderstood What 1 be!tEve I hao said was
f ;~~,
,
o ~.
,.
5
that I too had the tmpress\on Ms QUlck may havl', bee l €l.,d 11'1 the v-n t ness l.2Mt
not ln the w~y Mr. Coleman de~crlbed it It se~ms ~r )'Too 6 heard only par~
of what I hod sald
My inltial impress\on was that Ms Quick may h(l~,e led 'he Wl mess, but !'lot by
guidi.ng "Cruickshank's hands to her breasts", but r(,jth~r Qy her body
I!!,ovements .in the Course Qf b~r PO rt 1 c 1 Q(~.tJ~~!1 the demonstrpt tOL
,~
Because I was aware of my doubts about thi.s lliifJl"eSS1.0i 1 I lod put the I uestlon
to the Dane! members l.nitially, and subsequE',nt y .0 cJlH1sel SubseqUE-lr 1 \ I
was persuaded by Mr O'Toole that Ms Qui.Ck's/ bodV' rIll.l/ements Nere no., /,
deliberate attempts to lead the witness Thi. tom ;.lght me to the Vlev the body
movements ~ere most likely intended by Ms Duic~. in her rOle-plaYLnJ
situati.on, to demonstrate the complai.nant':7 ,=.ff I'ts to br,el.lk aWay ':rom
I
Santos's grasp This vi.ew, that the breast qontw:t i~ detnPnst.$LJQu. was
1nadverte"t, is conslstent with other eviae/ic , partlcula ly that 1.1 her oral
/
evidence in chi.ef Cl"ul.ckshank sai.d that S()f1to~. h.ld h"l~ at her we u.t, and mode
no menti.on of him touching her breasts. I
****.****+~*..***~.*.*
Mr O'Toolemlsrepresel1ts the majon.ty's findtngs when he s....ote.:; that the
maJority concluded tnat Santos's CQfl(iuc' tOWQr'dICrl~i. kshonk was unwelcome in
the inc\dents prlor to July 19th ~F 9] It is n1Uf'e correct to say t hat the
/ ts onus to prove w\th clear
majority found that the Employer hfr!;d to led 1.1
I
and convincing evidence that the /11 -:geri l.nodt:'ilts pr ~Qr to July 19th had
I
actually oc~urred It was the ref" r' '(nt1eces;s(.,r~, 7:! determln, Wllpth..'!' Santos's
conduct i.n those alleged ;.nc.idE t. JS I.Anwe: (("r:;;: The mo](\ lty, 1.r any (;;vent,
observed that the comploi.nar1t'; t :Jj~ilTk)nyjoFs 'nQt~ e Jtabll..sh tl1at she hod ever
clearly or directly lnformed $li ,tr):;." plOt L) Jlv 19th. tnat any of his
alleged comments or acti.ons we"e /Jlweh.OtT~
On the renolnlng matters in M 0 Gale s Dlsu~nt tl'e Awurd speaks for
I
ltself I
!
DATED AT HAMILTON, ONTARIO 'H ~ 2nH AY OF AI Rh, 11.195
/ i ~~~ 'J. td--~
I i V~.~
f I
i
I
--- ,~-