The Canadian Human Rights Tribunal has found a former Alexander First Nation chief sexually harassed an employee over a nine-year period.
Kurt Burnstick, former chief of the First Nation located about 55 kilometres northwest of Edmonton, was previously acquitted in 2017 of criminal charges related to his interactions with the complainant.
In a decision released July 31, the Canadian Human Rights Tribunal found Burnstick engaged in acts that “constitute the discriminatory practice of sexual harassment.”
The former employee filed two separate complaints with the Canadian Human Rights Commission in 2016. The complaints were later consolidated and referred to the tribunal as one inquiry in September 2018.
One complaint was against Alexander First Nation, while the other named Burnstick as the individual respondent.
The complaint against Alexander First Nation was settled, with the terms approved by the commission in January 2021. The complaint against Burnstick proceeded to a hearing.
According to the decision, the woman alleged Burnstick, who was a band councillor and later chief during the period in question, sexually harassed her.
The woman worked for Alexander First Nation from 2000 to 2016. She initially worked as a contractual employee conducting research on land claims before becoming a permanent employee and an assistant to the Treaty Land Entitlement administrator.
Her allegations began in 2006, when she said Burnstick engaged in flirtatious and sexual behaviour that she interpreted as an attempt to start a sexual relationship with her.
The alleged behaviour included unsolicited physical contact, including a kiss at a Calgary pub that she said was not consensual, and repeated instances of Burnstick bumping her with his belly.
She also described repeated inquiries about her personal availability outside of work, including texts during evenings and weekends, as well as alleged conduct she found disturbing, such as Burnstick dismissing his recent marriage as a barrier to their time together.
The former employee also alleged Burnstick offered financial assistance or extra work in circumstances that would create opportunities for the two to be alone.
She said he repeatedly invited her to out-of-town meetings, accompanied by suggestions that they could “relax, have drinks and have fun.” On some occasions, she said, Burnstick implied she would not have to repay money he had advanced to her if she agreed to travel with him.
The human rights tribunal’s decision says the woman also alleged she was required to collect paycheques directly from Burnstick on multiple occasions, often in private settings.
The decision says the alleged harassment became more frequent after Burnstick was elected chief in 2014.
The woman estimated there were between 50 and 100 incidents of unwanted touching and “belly bumping” between 2006 and 2015.
The harassment culminated, according to the woman, in an incident at the First Nation’s office on Oct. 28, 2015.
She had brought food to the band office for a meeting that was later changed to a management meeting. She said Burnstick helped her bring the food inside before asking her to come to his office.
Once inside, she said Burnstick asked her to close the door and then hugged her. She alleged he sat down, spread his legs and pulled her toward him, and grabbed her buttocks with both hands.
She immediately left the office and reported the incident to her supervisor. She asked him not to confront the chief out of fear of putting her employment at risk.
Burnstick disputed the woman’s account of the incident, testifying that the interaction was limited to a consensual hug.
The tribunal ultimately accepted her evidence.
Tribunal member Kathryn Raymond said the case turned largely because she found the woman to be a credible witness.
“I must decide whether this incident occurred based on a balance of probabilities,” the decision explains, finding guilt beyond a reasonable doubt is for criminal matters.
Raymond’s decision found Burnstick to be “dismissive in attitude during the hearing about the seriousness of the issues,” pointing to two occasions where he quietly got up and left the hearing without warning or permission.
But Raymond said the assessment of Burnstick’s credibility was not based on what she described as his “uncooperative attitude” at times, but rather based on his testimony about the incidents.
Raymond found that Burnstick’s explanations for his conduct were not persuasive or internally consistent and that text messages and evidence from other witnesses corroborated parts of the woman’s account.
Raymond found Burnstick’s conduct was unwelcome, sufficiently persistent or serious, sexual or gender-based in nature, negatively affected the former employee’s work environment and resulted in adverse job-related consequences.
The decision also found that the power imbalance between Burnstick, a political leader within the First Nation, and the woman, was significant.
The woman’s livelihood, ability to support her children and security of residence in the community depended on maintaining a working relationship with Burnstick, Raymond said.
Despite finding the complaint substantiated, Raymond did not order Burnstick to pay additional compensation to the complainant.
Raymond said the Canadian Human Rights Act requires the acts of an employee committed in the course of employment to be treated as acts of the employer. Because Alexander First Nation had already settled with the woman, Raymond found it did not have statutory authority to order Burnstick personally to pay additional compensation.
The woman had already received compensation through her settlement with Alexander First Nation, although Raymond noted that a settlement does not necessarily amount to an admission of liability or wrongdoing.
