Bar Manager Guilty Of Sexual Assault After Having Sex With Intoxicated Employee

Written on behalf of Arbesman Hamilton LLP

The Ontario Court of Superior Justice has found a 30-year-old Ottawa bar manager guilty of sexually assaulting an intoxicated 19-year-old female employee in the bar’s bathroom in 2015.

A Pattern Of Inappropriate Behaviour

At the time of the assault, the woman was working at the bar while she attended university. In the early morning of Feb 8, 2015, text messages between the two parties show the manager asked if she had any nude photos of herself on her phone, and told her she need not wear underwear to work. The woman testified that flirty behavior was a common occurrence at a bar, and going along with the conversation, replied that she had 20-30 photos and never wore underwear.

The Night Of The Assault

One week later, on February 15, the woman was scheduled to be trained working behind the bar, an opportunity given to her by the manager. She had sent the manager a number of “selfies” depicting her in various outfits she might wear to work. The manager responded by sending her a photo of her in a bikini; a photo he had downloaded from the woman’s Instagram account.

During the course of her shift, the woman became intoxicated. Some consumption of alcohol was permitted by employees. In addition, the manager also provided her with drinks. The facts become disputed at around 1:30 in the morning. At this time, the manager and the woman entered an employee washroom in the upstairs section of the bar. During this time, the manager engaged in various sexual acts with the woman. The manager testified the sex occurred after the woman showed him nude photos of herself on her phone. The woman testified he had taken the phone without her permission, that she had gone to the washroom to vomit, and that the manager had followed her and performed non-consensual sexual acts. The manager left the washroom with the woman’s cell phone and underwear. It was an undisputed fact at court that the woman was too intoxicated to consent to sex.

The woman, upset about what had occurred, left the bar before her shift was over. She visited her boyfriend and told him she had been raped, and he took her to a hospital to have a rape kit administered. A few weeks later she contacted the police, and an investigation led to charges being laid.

The Manager’s Side Of The Story

At trial, the manager testified he thought the sex was consensual up until the woman “hit a wall,” at which time he says he noticed she was too intoxicated to consent and left to get her some water. The court did not find credibility in his version of events, writing “He took her underwear and left her alone on the floor of the bathroom,” adding he was trained at being able to notice whether people were intoxicated and had supplied the woman with alcohol on the night in question.

“There Is No Doubt There Was An Unwanted Sexual Act”

The Court also called out the manager’s predatory behavior leading up to the assault, writing “He engaged in the worst kind of sexism, asking a female employee about nude photographs on her telephone, suggesting she need not wear underwear, sending her a bikini picture he had pulled from her Instagram account, asking to see her photographs and making other sexualized suggestions.”

In finding the manager guilty of sexual assault, the court wrote “There is no doubt there was an unwanted sexual act which is the essential element of the offence. I accept the evidence of the complainant that she did not initiate sexual contact and did not consent.”

Workplace violence or harassment, including sexual violence, is never acceptable. Employees have the right to feel safe at work and employers have a positive obligation to create an environment free of threats. At Arbesman Hamilton LLP, we represent both employees and employers in employment law matters and workplace disputes. We provide legal advice through all stages of employment relationships, including representing both employers and employees at litigation and dispute resolution. We aim to save our clients time and money through our in-depth understanding of both sides of employment law and understanding of the issues. Contact us online or by phone at 416-481-5604