She was sexually harassed at work. It took 6 years for a human rights court to schedule a hearing

Patricia Sayers always thought about the women she had left behind.

She quit her job after being sexually assaulted and harassed by a co-worker at a retail store in Uxbridge, Ontario.

“I immediately thought, I have to stop him from harming anyone else,” she said.

She filed a police report and submitted an application to the Human Rights Tribunal of Ontario (HRTO) in the hope of bringing about change at her former workplace.

The HRTO adjudicates claims of discrimination and harassment under the Human Rights Code.

Sayers filed her complaint in 2018 against the store location in question, the man who attacked her and the managers who she said mishandled her complaint.

There is no set time frame for how long the entire process will take, but it took six years for the court to set a date for the final step.

According to one watchdog group, her case illustrates the problems facing the HRTO: a backlog and delays that result in fewer cases reaching a final hearing, with far-reaching implications for human rights law.

Sayers says she chose the HRTO route because it can issue orders – so-called “public interest remediations” – against the defendants. These are intended to have a broader impact by preventing a recurrence of similar situations and by raising awareness about human rights and discrimination.

She said she believed this was the quickest way to increase the safety of the women she worked with. “That was not true at all,” Sayers said.

The case dragged on so long that the compensation Sayers was seeking became unattainable, she says. That was in part because the store was changing ownership, two of the defendants no longer worked there and a third was nearing retirement.

“(The court) denied these remedies in the public interest.”

She withdrew the lawsuit and reached a settlement outside the HRTO.

WATCH HERE | Patricia Sayers speaks out in hopes of making a difference

Insecure at work

According to her HRTO application, Sayers’ co-worker began sexually harassing her a month after she started working for the company, and about a year later, he sexually assaulted her while they were alone in the cafeteria.

“I went to management to report him and the incident. And they basically did nothing,” she told CBC Toronto.

Sayers says she felt unsafe at work and quit.

In February 2018, with the help of a lawyer, she filed her application with the HRTO. The man was accused of sexual assault, so the HRTO adjourned the case while the criminal proceedings were ongoing, despite arguments from Sayers’ lawyer against it.

He was sentenced in early 2019 and Sayers’ application was reactivated in May of that year.

A year later, mediation was attempted, but the parties were unable to resolve the issues, so the case was scheduled for a factual hearing—the final step in which an arbitrator determines whether discrimination occurred and issues orders if so.

Sayers said she was told her hearing would likely not take place for about two years due to backlogs.

In fact, the date was finally set for about three years later – October 2023.

In addition, the HRTO did not enter the October appointments into the system, she says. After several complaints, she was assigned new appointments for the end of January.

Instead, she settled with the court outside the agency, forcing her to withdraw her HRTO lawsuit.

Sayers received monetary compensation, and the store agreed to provide human rights training to employees and publish harassment policies and complaint procedures. This was a far cry from the remedies Sayers demanded of the HRTO—such as ordering the defendants to complete sexual harassment and human rights training at their own expense and requiring the store to hire a human rights consultant to make lasting changes.

“I wanted (the HRTO) to make them understand that what they did was not OK,” she said. “I also wanted to teach them that women have the right to go to work without being sexually harassed and attacked.”

Tribunals Ontario, which oversees the HRTO, says it does not comment on specific cases.

Spokeswoman Veronica Spada said the HRTO “continues to review its processes with the goal of moving applications through the system more efficiently and in a more timely manner.”

Missing data

The HRTO announced for 2022 that it would aim to schedule hearings within six months of the date the application was ready for further processing – that is, in 70 percent of cases.

Data on how often this criterion was met are not available in the last two annual reports because, according to the Tribunal, there is a problem with its case management system.

Current figures are only available for the third quarter of the past financial year. At that time, the target was achieved in 31 percent of cases.

More detailed information on the order backlog is only available for the last few years.

Between fiscal years 2021-22 and 2022-23, the number increased by 500 cases, while at the same time fewer cases were filed.

But at the end of the last fiscal year, there were still 8,500 cases in the queue – according to Spada, this is the first year since 2013 that the HRTO has reduced its overall number of applications.

The number of performance decisions fell by almost 60 percent in the last fiscal year compared to six years previously.

“Unprecedented” number of layoffs

Tribunal Watch Ontario, a non-profit watchdog group, is concerned that fewer HRTO cases are being heard orally and proceed to a factual hearing, says Kathy Laird, a member of the group’s steering committee.

She says this discourages people from applying.

“This tribunal has not done the job we expected,” said Laird, who is also former legal counsel to the HRTO chair and former executive director of the Human Rights Legal Support Centre, a provincially funded agency that provides legal assistance to HRTO applicants.

Laird says she is also concerned about the “unprecedented” number of cases – 1,344 of them in 2023-24 – that have been dismissed on judicial and procedural grounds and where there were no oral submissions.

She claims that the HRTO has narrowed its understanding of its own jurisdiction and can now dismiss cases without giving the parties an opportunity to speak before the court.

Spada says the HRTO can deny applications that do not fall within its jurisdiction after a written hearing and that its process for determining jurisdiction has been upheld by the Ontario Divisional Court.

Such dismissals may occur if an arbitrator finds that the request constitutes an abuse of process, has been addressed in other proceedings, or if a summary hearing did not show a reasonable prospect of success.

They also include the number of abandoned cases, which at 1,073 in 2023-24 were three times higher than six years ago.

Delays can cause applicants to give up on their cases, Laird says, especially if they are not asked to submit documents again until years of waiting.

“You can tire people out,” she said.

Toronto lawyer Tanya Walker, who typically represents defendants at HRTO hearings, says she’s watching the backlog clear. But as cases drag on, witnesses may no longer be available, memories are not as fresh and it can be difficult to get access to some evidence.

“It does no one any good if a matter is simply settled or dismissed because of delay. That is not fair and not just,” she said.

Walker says she would like to see increased funding for social assistance so that applicants are better informed about the tribunal, its scope and its procedures, since, according to Ontario Tribunal data, about 80 per cent of HRTO applicants are unrepresented.

Laird would like to see a special panel of expert arbitrators set up to handle pending cases and review the court’s interpretation of jurisdiction.

Sayers’ identity was protected by a publication ban because she was the victim of sexual assault in a criminal case.

But she managed to pick it up to share her story in the hopes of making a change to keep younger generations of women safe.

“I believe that our society as a whole does not take violence against women seriously enough. And I want that to change,” she said.