The Federal Government has announced a new initiative designed to control sexual abuse by the elimination of federal funding to any national sporting organizations which fails to comply with its directives designed to protect innocent athletes.

The new mandate requires all such organizations to report to the Sports Minister any allegations of abuse committed by its employees or others as soon as there is an awareness of such assertions. The national associations must also commit to creating a mandatory investigative procedure in place to inquire into such allegations. There is also a need to have a mandatory prevention training in place by April of 2020.

Failure to comply with these dictates will cause a cessation of federal funding for the association.

This directive comes in apparent response to the conviction of Bertrand Charest of 37 offences of sexual assault. Charest was a coach of Canada’s national ski team in the 1990’s.

One might question if this process is the correct means of insuring a safe relationship for young athletes in training. The failure of management will to comply with these directives will cause financial distress to the organization which is intended to promote their respective careers in their chosen sport.

The mandatory reporting process and the need to investigate are two good first steps which, in tandem, may lead to criminal charges or other appropriate discipline, where appropriate on a timely basis.

Ontario’s Statute

Ontario’s Occupational Health & Safety Act mandates such a process in Ontario for any provincially regulated employer. The Ontario Human Rights Code also contains a provision which allows the Ontario government to terminate any contract to which it is a party with any person or company which has been found to have violated a right protected by the Code.

Ontario’s OHSA does not contain a specific remedy given to a victim where there is a violation of its mandate. In this respect, it is similar to the above federal initiative.

The Remedy

However, it is very likely that such a failure to comply with the statute or any other similar mandated policy will be seen as a violation of the duty of good faith owed at the time of termination.[1]

This may lead to a claim for aggravated and or punitive damages in the event the context of the violation leads to a direct or constructive termination of employment. Such awards have taken on new significance in recent years as demonstrated by a recent judgment awarding $250,000 and $500,000 for aggravated and punitive damages respectively.[2]

Even without a termination, which calls into play a direct duty of good faith, it is very likely that such violations will be seen as a violation of the obligation “honest performance”[3] which runs throughout the entirety of the relationship.

Stay Current

This new federal policy and the Ontario statute reflect changing awareness in society of the need to protect employees and others from sexual abuse. Employers must be constantly aware of the need to implement and enact appropriate policies and investigations. The failure to do so can lead to considerable liability and human suffering.

Employees must similarly be knowledgeable of their rights and remedies.

If you have questions about this issue, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

 

 

 

[1] [1] As was stated in Wallace v United Grain Growers Ltd, 1997 CanLII 332 (SCC), [1997] 3 SCR 701, 152 DLR (4th)

[2] Galea vs Wal-Mart

[3] in Bhasin v Hrynew


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