Mediation and other less adversarial methods continue to be the best ways to respond to allegations of sexual misconduct, including sexual harassment and sexual abuse, say lawyers.
Mediation is a more “humane” way to respond to allegations than trials, says Kathleen Urdahl, a lawyer who practises mediation full time with Global Resolutions Inc. in Toronto. This makes mediation an extremely appropriate forum to respond to sexual abuse, she says.
"Sexual abuse cases are different from other civil suits seeking damages for personal injury because they're very personal in their nature," she says. "The courts consistently recognize that they're distinctive."
Injuries caused by sexual abuse "are different from a broken arm or leg," she says.
Sexual abuse attacks a person's dignity, is inherently violent and involves "an intentional abuse of power or a betrayal of trust," Urdahl says.
"In abuse cases, they're very personal and [alleged perpetrators] are not anonymous forces," says Urdahl. "There's no mystery to it."
Loretta Merritt, a lawyer with Torkin Manes LLP in Toronto, says mediations offer an optimal situation for defendants to apologize.
"It's a really positive thing when the defendant starts the mediation with an apology not as a negotiated term of settlement but right from the outset: I'm really sorry this happened to you; this should have not happened to you," says Merritt.
The Apology Act prevents such apologies from being admitted into evidence at civil proceedings, arbitration or administrative proceedings as evidence of liability or fault.
Merritt says nearly all such cases on which she works settle through mediation.
Less adversarial responses also need to be considered in the context of complaints about sexual misconduct in the workplace, says Blaine Donais, a lawyer, mediator and arbitrator and founder of Donais Mediations and Arbitrations Inc. in Toronto.
In 2016, the Ontario government added "workplace sexual harassment" to the definiton of "workplace harassment" in the Occupational Health and Safety Act in 2016. The law also requires employers to create written policies about how to report workplace sexual harassment and to ensure that investigations are conducted. That change to the law has resulted in an increase in workplace investigations, says Donais, but formal investigations aren't always appropriate.
"It is entirely possible that an investigation is not safe for some employees, or some employees may feel like an investigation is not safe and they may even feel like it's re-victimization when you think of the rigours that are involved," he says.
Investigations "turn that workplace upside-down," says Donais.
"It is brutal in terms of the relationships in that workplace, often severely damaging the relationships there."
However, Donais says, the law allows for some flexibility in what constitutes a workplace investigation. The law says "an employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances."
Sexual harassment can cover a variety of actions, ranging from poisoned environments created by the presence of pornography to inappropriate physical conduct, says Donais. Each situation would require a different approach; a formal investigation may not be "appropriate in the situations," he says.
"Typically speaking, what best practices are is for organizations to have a number of options available to the person who is raising the concern," he says.
"When we talk about alternatives to [investigations], it's not just mediation," says Donais.
Sensitivity training may be appropriate for responding to some complaints. In other cases, a complainant may want to have someone go with them and help them address their concerns with the respondent, he says.
The increase in workplace investigations has resulted in an increase for workplace restoration services, says Donais.
"There's been a very big rise in the use of workplace restoration as a restorative measure that happens after investigations. That is the most common use of appropriate dispute resolution," he says.
In October, the federal government passed Bill C-65, which changed the Canada Labour Code to strengthen protections against sexual harassment in federal workplaces. One method included in the bill is designating a person in workplaces to hear complaints.
This isn't the same as a formal investigation, says Donais. Instead, the bill contemplates "a function where employees who come and want to raise a concern are considered visitors. Their coming in is independent, informal, impartial and confidential." Exceptions apply if a person is fearful for their lives or if there are allegations of child abuse, says Donais.
Some laws make it harder to respond to allegations of sexual abuse with alternative dispute resolution. Ontario's Health Professional Procedural Code says alternative dispute resolution processes, including mediation, cannot be used when there are allegations that a member of a health profession has committed sexual abuse against a patient. The Regulated Health Professions Act, which created the procedural code, defines sexual abuse as physical sexual relations, touching a patient in a sexual nature or making sexual remarks toward them. This does not include touching or remarks made in a clinical matter that are appropriate for the health-care service being provided.
This can be problematic, says Paul Fauteux, an Ottawa-based lawyer, mediator and arbitrator with Colas Moreira Kazandjian Zikovsky LLP. Fauteux typically practises international, environmental and Aboriginal law. He uses transformative mediation, a method where mediators help parties understand what their objectives and options are in mediation.
Fauteux recently argued at the Alternative Dispute Resolution Institute of Ontario that the Health Professional Procedural Code should be changed.
“I suggest that the Health Professions Procedural Code of Ontario, which excludes mediation in cases where sexual abuse by a health professional is alleged — it's not proven, it's just alleged — [be changed],” he says.
“The Health Professions Procedural Code says if there's been an allegation of sexual abuse, you can't mediate, even if the person who's making the allegation would like mediation, would like an opportunity to discuss a very unsafe subject, an allegation of sexual abuse, in a safe context created by a mediator.”
Along with prohibiting mediation as a response to sexual abuse complaints, the code creates an "uneven playing field" with respect to costs when a finding of professional misconduct is made, says Fauteux. The Code says that, in certain cases, if the disciplinary panel finds a member to have committed professional misconduct, the member may be ordered to pay all or part of the college's legal costs and expenses and costs and expenses of the investigation and the hearing.
Fauteux thinks the Code needs to change in these areas and that prohibiting mediation can lead to greater harm. Mediation is “a lot quicker, a lot cheaper and immensely less painful” than the disciplinary process, he says.