What is the test for determining whether a respondent ought to have known conduct to be unwelcome?
Ontario, Canada
The following excerpt is from AM v. Kellock, 2019 HRTO 414 (CanLII):
A determination of whether a respondent ought to have known conduct to be unwelcome is an objective test. What is reasonable should take into account both perspectives – that of the individual initiating the action, and that of the individual who is on the receiving end. See de los Santos Sands v. Moneta Marketing Solutions Inc., 2016 HRTO 271 (“de los Santos Sands”) at paragraph 34. This would also mean that what is reasonable should take into account the relationship between the two individuals. Whether conduct is unwelcome must also factor in any power imbalance that may exist, as such an imbalance will affect what a person may assume is welcome.
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