What is the standard of proof in sexual harassment cases?
Canada (Federal), Canada
The following excerpt is from Naistus v. Chief, 2009 CHRT 4 (CanLII):
Discrimination and the Law, referring to Zarankin v. Johnstone (1984), 5 C.H.R.R. D 2274 (B.C.Bc. Inq.) at D/2280, sets out the standard of proof in sexual harassment cases: The Complainant must prove, on a balance of probabilities that there was a contravention...of the Human Rights Code. This involves two parts: (1) proof that the alleged conduct by the Respondent occurred; [and] (2) proof that it constituted sexual harassment in the circumstances (for example, that it took place without the complainant's willing consent). If the Complainant leads evidence which could satisfy these requirements, then the Respondent has an evidentiary burden to respond with some evidence that the acts did not occur or that they did not constitute sexual harassment. (at p. 15-57)
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