Close quarters: Human rights decision underscores limits of human rights jurisdiction, importance of physical context
A recent Alberta Human Rights Commission decision provides important takeaways for employers seeking to prevent harassment claims in physically confined work environments.
In Saforov Subway (Fort McMurray), 2025AHRC55, the Commission dismissed an employee’s complaint that she had been sexually harassed on the job. The complainant alleged that she was groped, bumped and touched by co-workers on a daily basis, and that her complaints ultimately led to her termination. She also raised issues related to a training video and alleged improper payroll practices.
For employers, the decision underscores the importance of context—specifically, the physical workspace—and highlights steps that can help mitigate legal risk when employees work in tight quarters.
“One of the most effective ways to reduce the likelihood of claims is to train employees on what is and isn’t appropriate workplace conduct,” says Zack Lebane, employment lawyer at Sherrard Kuzz LLP in Toronto.
“That includes examples of how to navigate a tight or fast-paced environment, such as using clear verbal cues or keeping respectful physical boundaries.”
Physical layout and unintentional contact
The employee worked at a Subway location in northern Alberta from September 2021, to March 2022. She alleged that her co-workers “touched her body and skin,” “intentionally got in her way,” and “groped” her in front of customers. She further alleged that her area manager “bumped into her with significant force.”
The employer said the nature of the food prep areas made close contact unavoidable. To deal with such situations, Lebane recommends thorough training of employees and an attitude of seriousness when complaints arise. This includes policies that clearly outline procedure.
“Having a training program for employees on what constitutes sexual harassment and why itis unacceptable is also beneficial, particularly if the workplace involves physical closeness,” says Lebane.
“One of the biggest things an employer must do from both a legal and practical perspective is take complaints of workplace harassment seriously, investigate and take appropriate steps if harassment has occurred.”
The Commission found that contextual details were critical: “While I find that there was physical contact amongst the employees, the information does not support that any of this contact was intentional,” the decision states.
“By the complainant’s own reporting, staff apologized and noted that they were unaware that they had brushed against her.”
The Commission noted that even if physical contact occurred, it did not meet the legal definition of harassment under the Alberta Human Rights Act.
The importance of intent
As Lebane explains, the Human Rights Tribunal of Ontario consistently disregards intent when it comes to complaints of harassment. Rather, it tends to focus on the result of the alleged acts or behaviour.
“Even if contact is unintentional, if the impact on the employee is harmful or if the conduct is repeated and unwelcome, that may still meet the threshold for harassment,” says Lebane.
“Employers need to be proactive in ensuring employees understand the line between incidental contact and conduct that could cross into harassment…this is because instances of harassment on the basis of race, religion, place of origin, ethnic origin, or ancestry often stem from unconscious beliefs, biases, and prejudices, rather than deliberate or intentional acts of harassment.”
Workplace design to minimize risk
One co-worker “bumped his elbow into her breast,” according to the complainant, but when she brought it up with him, “he said that he was sorry.” Another employee, when told she had brushed the complainant’s hand or an object near her, “apologized and said that she would try her best to make sure it would not happen again.”
“Ultimately, employers should recognize that context matters—but they must still act promptly and thoroughly when concerns are raised,” says Lebane.
“Ignoring or downplaying complaints because the work environment is ‘naturally close’ can significantly increase legal risk.”
Depending on the workplace, there may only be so much an employer can do to prevent physical interaction between employees.
“There are many reasons why auditing workplace design or flow can be beneficial for an employer,” says Lebane.
“The benefits could include greater productivity, increased safety and yes, could lower the likelihood of interactions that could lead to sexual harassment. That being said, depending on the workplace, there may only be so much an employer can do to prevent physical interaction between employees.”
In this case, due to the employer’s evidence, the Commission accepted the explanation that these interactions were consistent with the demands of the space and not motivated by sexual intent, stating, “The respondent found that the contact between the complainant and her co-workers was standard and expected between employees working side-by-side in a tight workspace.”
Video evidence and timely responses
The employer’s response to the allegations was supported by surveillance footage and internal documentation. One incident involving the area manager was captured on video, helping to disprove the claim of intentional sexual touching.
The manager “was carrying oven trays and bumped into the complainant on her way through,” the decision states. “The complainant started yelling and accusing the manager of having grabbed her butt. The manager stopped, put her hand on the complainant’s shoulder and asked her what she had said because she had not understood the complainant.”
The employer also documented performance issues and communications with the complainant leading up to her termination. The Commission found that these records supported the employer’s position that the termination was unrelated to any harassment complaints.
Scope of human rights jurisdiction
The decision also clarified the limits of what the Alberta Human Rights Commission can address. The employee had alleged improper payroll practices and expressed distress over a training video that used a cartoon character with her name. The Commission dismissed these aspects of the complaint.
“The Commission cannot consider complaints about the improper payment of wages, unprofessional behaviour or inadequate management unless there is information to show that the complainant was treated badly, or negatively affected, because of a protected characteristic,” the decision reads.
“There is no connection between the complainant and the training video. Moreover, there is no information to suggest that the complainant’s gender or any other protected characteristic was at all related to the fact that the cartoon character had her same name.”
No reasonable prospect of success
Ultimately, the complaint was dismissed under section 26 of the Alberta Human Rights Act, which allows the Commission to reject claims that have “no reasonable prospect of success.”
“The information provided by the complainant does not support a finding of sexual harassment or any other kind of discrimination on the basis of gender,” the Commission concluded.
Lebane explains that employers should preventatively take “all precautions reasonable” for their particular circumstances to protect workers, including when space is limited.
“If work in tight spaces is required, it is always a good idea to set employee expectations about appropriate interactions with other employees,” Lebane says.
“For example, having a standardized communication system, such as saying ‘behind’ before walking behind someone is good practice to avoid unwanted physical contact.”
