The Canadian Human Rights Tribunal has determined that a former chief of the Alexander First Nation engaged in sexual harassment towards an employee over a span of nine years.
Kurt Burnstick, the previous chief of the First Nation situated approximately 55 kilometres northwest of Edmonton, was acquitted of criminal charges concerning his conduct with the complainant back in 2017.
In a ruling released on July 31, the tribunal concluded that Burnstick committed acts that “constitute the discriminatory practice of sexual harassment.”
The former employee lodged two separate complaints with the Canadian Human Rights Commission in 2016. These complaints were later merged and forwarded to the tribunal for a single inquiry in September 2018.
One complaint was directed at the Alexander First Nation, while the other identified Burnstick as the individual respondent.
The complaint against Alexander First Nation was resolved, and the settlement terms were approved by the commission in January 2021. The case against Burnstick proceeded to a hearing.
The decision notes that the woman accused Burnstick, who served as a band councillor and then chief during the relevant timeframe, of sexually harassing her.
Alleged incidents
The woman was employed by the Alexander First Nation from 2000 to 2016. Initially, she worked as a contractual employee conducting research on land claims, later becoming a permanent staff member and assisting the Treaty Land Entitlement administrator.
Her allegations began in 2006, when she claimed Burnstick exhibited flirtatious and sexual behavior that she perceived as an effort to initiate a sexual relationship with her.
The alleged behavior involved unwanted physical contact, including a kiss at a pub in Calgary that she stated was non-consensual, as well as repeated instances of Burnstick bumping her with his stomach.
Additionally, she recounted frequent inquiries regarding her personal availability outside of work, including messages during evenings and weekends, and other conduct she found unsettling, such as Burnstick downplaying his recent marriage as an obstacle to their interactions.
The former employee also claimed that Burnstick offered financial help or extra work in situations that would allow them to be alone together.
She noted that he persistently invited her to meetings outside of town, suggesting they could “relax, have drinks and have fun.” At times, she stated, Burnstick hinted that if she agreed to travel with him, she would not need to repay any money he advanced to her.
The tribunal’s decision mentions that the woman also alleged she had to collect paychecks from Burnstick directly on several occasions, often in private settings.
The ruling indicated that the harassment became more pronounced after Burnstick was elected chief in 2014.
The woman estimated between 50 and 100 instances of unwanted touching and “belly bumping” occurred from 2006 to 2015.
According to the woman, the harassment peaked in an incident at the First Nation’s office on October 28, 2015.
She had brought food to the band office for a meeting that was later changed to a management meeting. She recounted that Burnstick assisted her with the food before inviting her to his office.
Once there, she claimed Burnstick asked her to shut the door, then hugged her. She alleged he sat down, spread his legs, pulled her towards him, and grabbed her buttocks with both hands.
She immediately exited the office and reported the incident to her supervisor, requesting that he not confront the chief due to concerns about her job security.
Burnstick contested the woman’s version of the incident, asserting that their interaction was merely a consensual hug.
Ultimately, the tribunal accepted her testimony.
Tribunal member Kathryn Raymond stated that the case hinged primarily on her assessment of the woman as a credible witness.
“I must determine whether this incident occurred based on a balance of probabilities,” the ruling clarifies, noting that establishing guilt beyond a reasonable doubt pertains to criminal cases.
Raymond’s findings indicated that Burnstick exhibited a “dismissive attitude during the hearing regarding the seriousness of the issues,” highlighting two instances where he unexpectedly left the hearing without permission.
However, Raymond stated that her evaluation of Burnstick’s credibility was not solely based on what she characterized as his “uncooperative attitude” at times, but rather on his testimony concerning the incidents.
Raymond concluded that Burnstick’s explanations for his actions were not convincing or coherent, and that text messages and testimony from other witnesses supported elements of the woman’s account.
Raymond determined that Burnstick’s behavior was unwelcome, sufficiently persistent or severe, sexual or gender-based in nature, negatively impacted the former employee’s work environment, and resulted in adverse job-related consequences.
The ruling also recognized a significant power imbalance between Burnstick, a political figure in the First Nation, and the woman.
According to Raymond, the woman’s means of livelihood, ability to support her children, and housing security within the community relied heavily on maintaining a working relationship with Burnstick.
Despite determining the complaint was substantiated, Raymond did not mandate Burnstick to provide additional compensation to the complainant.
Raymond noted that the Canadian Human Rights Act stipulates that actions of an employee performed during their employment should be regarded as acts of the employer. Since Alexander First Nation had already reached a settlement with the woman, Raymond concluded that she lacked the statutory authority to order Burnstick to pay additional compensation personally.
The woman had previously received compensation as part of her settlement with Alexander First Nation, although Raymond pointed out that such a settlement does not necessarily imply an acknowledgment of liability or wrongdoing.