Cassidy v. Canada Post Corporation & Raj Thambirajah

Cassidy v. Canada Post Corporation & Raj Thambirajah

On the facts the Tribunal found that the respondent Thambirajah intentionally made inappropriate physical contact with the complainant's blouse over her chest and made a sexual comment on November 9, 2005; that this conduct constituted sexual harassment under s.14(2) CHRA; Canada Post became aware April 25, 2006 and failed to exercise all due diligence subsequently (missed 10‑day discipline window and communication errors) and is therefore liable under s.65 CHRA; the parking‑lot episode during the hearing constituted wilful or reckless retaliation under s.14.1 CHRA; appropriate monetary compensation and non‑monetary orders were required to remedy the breaches.

Citation
2012 CHRT 29
Parties
Complainant: Doris Cassidy; Commission: Canadian Human Rights Commission; Respondent: Canada Post Corporation; Respondent: Raj Thambirajah
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
23 November 2012
Procedural Posture
Human Rights Complaint Under the Canadian Human Rights Act / Decision
Outcome
Complaints substantiated in part: liability found against Raj Thambirajah for sexual harassment (Nov 9, 2005) and for retaliation (parking‑lot incident); Canada Post held vicariously liable for failing to exercise all due diligence after April 25, 2006 regarding the November 9 incident.
Legal Topics
Sexual Harassment, Retaliation, Vicarious Liability, Remedies, Procedural Delay
Source Language
English
Human Rights Employment Law Workplace Harassment Sexual Harassment Retaliation Vicarious Liability Remedies Procedural Delay

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Parties

Doris Cassidy

Complainant

Canadian Human Rights Commission

Commission

Canada Post Corporation

Respondent

Raj Thambirajah

Respondent

Procedural Posture

Human Rights Complaint Under the Canadian Human Rights Act / Decision

Legal Issues

  1. 1 Whether touching of complainant's blouse and accompanying comment constituted sexual harassment under s.14(2) CHRA
  2. 2 Whether Canada Post is vicariously liable under s.65 CHRA for failing to prevent or mitigate harassment
  3. 3 Whether parking‑lot conduct during the hearing constituted retaliation under s.14.1 CHRA

Ratio Decidendi

On the facts the Tribunal found that the respondent Thambirajah intentionally made inappropriate physical contact with the complainant's blouse over her chest and made a sexual comment on November 9, 2005; that this conduct constituted sexual harassment under s.14(2) CHRA; Canada Post became aware April 25, 2006 and failed to exercise all due diligence subsequently (missed 10‑day discipline window and communication errors) and is therefore liable under s.65 CHRA; the parking‑lot episode during the hearing constituted wilful or reckless retaliation under s.14.1 CHRA; appropriate monetary compensation and non‑monetary orders were required to remedy the breaches.

Court Disposition

Complaints substantiated in part: liability found against Raj Thambirajah for sexual harassment (Nov 9, 2005) and for retaliation (parking‑lot incident); Canada Post held vicariously liable for failing to exercise all due diligence after April 25, 2006 regarding the November 9 incident.

Orders

  • Mr. Thambirajah shall pay the Complainant compensation for pain and suffering for the sexual harassment in the amount of $5,000 and special compensation in the amount of $2,500
  • Mr. Thambirajah shall pay the Complainant compensation for pain and suffering for the retaliation in the amount of $2,000 and special compensation in the amount of $500