What is a 'reasonable' person?

The Human Rights Tribunal of Ontario (“the HRTO”) has held that an objective standard must be relied upon when determining whether or not a Respondent knew or ought to have known their impugned behaviour was unwelcome. In Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 6952013 HRTO 695, the Tribunal found that the standard is what the perception of a reasonable person would be considering the perspective of both a reasonable person in the Complainant’s position and a reasonable person in the individual Respondent’s position.

The subjective standard considers whether the behaviour would create an honest and reasonable belief that a person with the same characteristics as the Respondent or Complainant (i.e., similar mental and physical characteristics, personal knowledge and/or history) in the same circumstance would conclude the behaviour was harassing in nature. Whereas, the objective standard considers the circumstances from the point of view of a hypothetical reasonable person who does not have the same characteristics. However, when it comes to sexual harassment, for example, the reasonable person is one who “does not rely on gender stereotypes, and understands what sexual harassment is.”

This standard allows a decision-maker to determine whether a reasonable person who does not have the same history, knowledge, characteristics or viewpoints would also find the impugned behaviour to be unwelcome. The reasoning for such a standard is that a hypothetical reasonable person may not view the impugned behaviour in the same manner as the person experiencing it. The behaviour must objectively be harassing in nature and not simply harassing to the individual on the basis of their past or experiences with the alleged harasser, for example.