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Can You Consent to Sex at Work?
Consent, Coercion and Sexual Harassment in the Workplace
The Cornell 7 case has re-ignited a conversation about coercion and consent, and shares many unfortunate features with the Hockey Canada 5 case of 2025. Although neither of these cases are directly related to sexual harassment and violence in the workplace, we thought we’d take this opportunity to talk a little bit about how consent operates when it comes to sexual harassment at work.
Sexual harassment, whether at work or elsewhere, describes a spectrum of behaviour, from unwanted comments about sex to sexual violence.
Sexual violence is a criminal matter, as well as a civil matter. You can pursue actions through criminal or civil courts, as well as through administrative processes like the Human Rights Tribunal. Consent matters in criminal actions. In civil and administrative proceedings, consent still matters, but we use slightly different language and a different lens. Let’s explore both.
The Criminal Code. S. 273.1 defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” It further states that no consent is obtained if:
- the complainant is unconscious
- the complainant is incapable of consenting
- the accused abuses a position of trust, power or authority
- the complainant says or indicates through actions ‘no’ or that they do not consent
- the complainant withdraws consent at any time during the activity
Case law also helps to clarify consent at the criminal level in Canada. Cases such as R. v Ewanchuck, R. v J.A., R. v Barton and others establish that there is no “implied consent” and that consent must be actively provided. Consent requires a conscious, operating mind that is capable of providing continuous ongoing consent through the sexual activity. You cannot give ‘advanced consent,’ and consenting to one act does not amount to consenting to others or to any level of force or injury. Finally, it is established at law that the courts cannot rely on myths or stereotypes about sexual history or sex work when coming to their decision. (Critics would argue this last is not always upheld.)
The criminal justice system is only one way for people who have experienced sexual harassment at work to get justice. For others, it may not be an option, or the best option. There are low conviction rates in criminal courts for a variety of reasons, including historic understandings of sexual violence (ie rape myths.) The Criminal Court process can be difficult and demanding for the complainants, and meeting the ‘beyond a reasonable doubt’ burden of proof can be difficult. Finally, the criminal system does not award damages to complainants. This is where civil and administrative proceedings come in.
Regardless of whether you have brought forward a criminal case, or if the criminal case was successful, you can bring forward a claim through a court, tribunal, or administrative process if you have have experienced sexual harassment or violence at work. In these forums, the burden of proof is ‘on a balance of probabilities,’ which is a lower evidentiary threshold to meet. The burden to prove that sexual harassment occurred is on the applicant, and the trier-of-fact will assess both the applicant and the respondent’s evidence fairly and impartially.
With civil or administrative proceedings the issue is not whether a criminal act occurred. Instead, these proceedings look at the evidence through different lens such as the Occupational Health and Safety Act (OHSA), the Ontario Human Rights Code, tort law, employment law and labour arbitration principles. The question then becomes was the conduct in question unwelcome, harassing, discriminatory, coercive, or did it create a poisoned work environment.
The definitions of both the OHSA and the Human Rights code are very similar, and define harassment as a course of vexatious, or unwelcome, comment or conduct that is known or ought reasonably to be known to be unwelcome.
Workplace sexual harassment includes unwanted comments or conduct based on sex, sexual orientation, gender identity or gender expression; unwanted sexual comments, unwanted sexual advances, requests for sexual favours, and sexual solicitation by a person who is in a position to confer, grant or deny a workplace benefit.
The question of consent in civil and administrative proceedings then becomes the question of “was the conduct welcome, or unwelcome?”
As far back as Janzen v. Platy Enterprises Ltd, and as recently as NK v. Botuik, the courts and tribunals have made it clear that an apparent acceptance of harassment is not the same as actual acceptance of harassment. As stated in Janzen, “Sexual Harassment in the workplace is an abuse of both economic and sexual power.” The courts recognize that fear of retaliation, including job loss and the subsequent economic hardship that can bring, may cause workers to tolerate that which they otherwise would not tolerate. They also recognize that various intersecting identities such as race, gender, disability, immigration status, etc., may affect someone’s desire to report or confront a harasser.
This can be understood in a way as a mirror of the criminal law principle that consent obtained through abuse of power is not legally valid. While the legal tests are different, they are both measuring power imbalances that may affect whether there is truly a voluntary agreement.
Questions of consent or coercion can be difficult to tease out, no matter what burden of proof is being met. False accusations of sexual harassment are statistically quite low. A failure to find a witness credible, or a failure to find in favour of the applicant is not the same as a false allegation. Someone may feel harmed, even if the trier of fact of that particular forum determines it doesn’t meet the necessary evidentiary bar. Determining if a relationship is consensual or coercive comes down to the credibility and reliability of the people involved.
As we’ve written about before in our blog Matters of the Heart Can Be Muddy and Murky, the Human Rights Tribunal dismissed the application in Assaf v. Soler D&V Licensing Inc., 2026 HRTO 206, finding that the evidence did not support the applicant’s version of events, and characterizing the interactions in question as part of a mutual, consensual personal relationship rather than non-consensual harassment.
Let’s contrast that with NK v. Botuik, which is a leading case that tackles the complex question of whether or not sexual conduct between co-workers is consensual or not. For those who have been subject to sexual violence, this can be a difficult read. The applicant, NK, was employed as a direct care worker and her direct supervisor was the respondent, Botuik. Botuik made sexual advances towards NK, and also made it very clear that the scheduling of shifts was entirely at his discretion. Although at first she resisted the respondent’s advances and touching, she testified that at a certain point she just “gave in”, and that after that, “…they entered into a strange, seemingly consensual relationship.” When she tried to break off the relationship, she was subject to sexual assault.
In assessing the unique facts of the circumstance, the tribunal took into consideration the societal barriers (such as fear of losing work) that may stop someone from refusing or reporting sexual harassment in the workplace. The tribunal determined, on a balance of probabilities, that the behaviour was unwanted and contrary to the code, that “…the applicant’s acquiescence to the relationship was not consensual, but forced, and that the relationship itself was a forced one.”
This decision makes it clear that beyond just ‘unwanted behaviour’ the civil courts, human rights and administrative tribunals do consider ‘consent’ in reviewing sexual harassment at work claims. It’s also clear that evidence, credibility and due process matter when bringing forward a claim.
We’ll explore some of these questions a little deeper in our next blog post, where we look at issues of reliability and credibility.
If you have experienced sexual harassment at work, we can help. Call 1-833-677-5146 for free legal advice.
