Sexual harrassment appeal continues
“You crossed the line big time.”
“You crossed the line big time.”
So concludes an email written to Mark Hureau by Devon Hanson, an 18-year-old who launched a successful sexual harassment complaint against her former employer in a human rights case that has now found its way to the Yukon Supreme Court.
Hureau, 47, is appealing a decision by the Yukon Human Rights Board of Adjudication that concluded the then-owner of Intersport sexually harassed Hanson, now 22, while she worked at the sporting goods franchise in March 2010.
The decision revolved around a number of text messages and emails between Hanson and Hureau — also her basketball coach — roughly four years ago.
The two-day appeal, which continues today and is open to the public, concerns not what did or did not occur, but whether the board applied sound reasoning and proper legal processes to determine whether sexual harassment took place.
James Tucker, Hureau’s lawyer, told the court yesterday that the board’s reasoning was flawed and that it incorrectly applied the “test” for what constitutes sexual harassment.
In its decision, the board stated; “Due to the lack of complete record of the texts and emails between the complainant and respondent ... the board in its final determination focused on the nature of the emails from Mr. Hureau on March 26 and 27.
“It was primarily these two documents which solidified the determination of the board that Mr. Hureau did not properly act or react to Ms. Hanson in an appropriate manner for an employer toward an employee,” the 2012 decision reads.
Tucker said the two emails alone were not sufficient grounds for the panel members’ finding of sexual harassment.
“They relied on the apology (in one of the emails) to conclude ... that there was something sexual in nature that amounted to sexual harassment,” he said.
“So what?” Justice Ron Veale asked.
“Our issue is that the text messages (rather than the emails) were the subject — the complaint of conduct. And they require an assessment, an assessment which never occurred,” Tucker replied.
“The board took those emails as admissions…. There are real problems with that…. Basically the board failed to apply the test for sexual harassment.”
The Yukon Human Rights Act defines sexual harassment as “a sexual solicitation or advance that one knows or ought reasonably to know is unwelcome.”
In its decision, the board laid out the parts of the “sexual harassment test,” which asks whether the conduct was “welcome” and “sexual in nature” and, if so: “Was the persistence or gravity of the conduct enough to constitute harassment?”
To each the board answered in the affirmative.
“This is the irony of it: they stated the test properly; they just didn’t use it — which is why this is such a tricky one,” Tucker said.
He sought to have the board’s decision set aside.
Such an order would put the complaint back to the Yukon Human Rights Commission and give Hanson an opportunity to pursue it all over again.
That would proceed automatically unless she then withdrew her complaint.
The board has pegged the level of harassment at the “most mild end of the spectrum.”
Colleen Harrington, counsel for the commission, rejected Hureau’s appeal outright, saying his argument would necessitate a new hearing beyond the scope of an appeal court.
“There is clear support that each and every one of the grounds of appeal really invokes the need to start going into the evidence and the facts ... an area that’s really outside the court’s jurisdiction,” she said.
“The appeal should fail.”
Harrington also said the two emails highlighted by Tucker and the board were “simply one piece of the contextual jigsaw puzzle, part of the backdrop against which this drama unfolded.”
Hanson’s father Michael was in the courtroom Wednesday and Thursday.
“It’s very hard for the whole family,” he said. “It’s hard for her.”
He told the Star during a break in the appeal hearing how the four-year human rights case has interrupted his daughter’s life.
“It interferes with her studies. It interferes with her concentration.”
Devon Hanson, now 22, is completing a political science degree at St. Francis Xavier University in Antigonish, N.S.
Her father also noted the social toll the incident and subsequent legal battle has taken on the family: “It’s a small town.”
On Thursday, the commission argued in a cross-appeal that Hanson was not compensated fairly for her loss of “feelings, dignity and self-respect.”
An argument was also put forward that Intersport, not just Hureau — who was manager and sole shareholder at the time — should be held liable for harassment.