WARNING: This article contains details of sexual assault and may affect those who have experienced it or know someone affected by it.
A former DARTS driver from Hamilton says she was asked to pick up a passenger who she alleges sexually assaulted her on the job two years earlier.
The woman, who no longer works for the accessible transportation service, has been waiting seven years for a hearing at the Human Rights Tribunal of Ontario (HRTO) and, for the first time, is sharing her story publicly in her pursuit for accountability.
“Recovery becomes hard when there’s no answers,” she told CBC Hamilton.
DARTS, short for Disabled & Aged Regional Transit System, is a non-profit organization contracted by the City of Hamilton to provide accessible transportation.
The woman filed a complaint to the HRTO in 2017, accusing her employer of discriminating against her by not preventing sexual assault — which she said involved a rider who made sexual comments and masturbated behind her — and not properly accommodating and protecting her afterwards.
CBC News is not identifying the woman due to the nature of the alleged assault. The HRTO also approved a request by her lawyer to anonymize her name in the proceedings.
“If I can be brave enough to tell my story and let people know of my traumatic experience, I would hope that would give someone else hope to tell their story,” the woman said.
Accessible transit service says case should be dismissed
Documents she filed to the HRTO and reviewed by CBC Hamilton detail why she wants $275,000 from DARTS for allegedly violating her human rights and discriminating against her on the basis of a disability.
The HRTO resolves claims of discrimination and harassment under the Human Rights Code.
The city declined CBC Hamilton’s request for comment and directed questions about the case to DARTS.
Documents filed by DARTS with the HRTO outline why it says the complaint should be dismissed.
DARTS declined an interview with CBC News, but executive director Kathy McVicars said in an email that employees’ and passengers’ health and safety is a “top priority” and protective measures are in place.
McVicars said the service takes sexual harassment allegations seriously and promptly investigates them. She said she couldn’t comment on this specific case due to litigation and privacy concerns.
Woman, DARTS debate details of 1st incident
HRTO documents say the woman, who was a full-time employee, was driving a DARTS minivan and picked up a male rider in July 2016. The man joined two other passengers in the vehicle.
Documents from the woman state there was nothing in the rider’s profile with DARTS to “warn” her of his history of “indecent exposure and public sexual indecency, and sexual assault.”
During the 15-minute ride, the passenger made “unwelcome sexual comments,” masturbated during the ride and ejaculated on her, her documents say.
They indicate two other passengers would have been in the van during some of the man’s sexual misconduct before they exited the vehicle at their stop.
Her documents say she didn’t pull over the minivan, proceeded in a “state of shock” and got him to his destination early.
She also said her training never prepared her for a situation like this.
The DARTS documents say drivers have “complete discretion” to end the ride and seek help as needed.
The service also rejected the claim the man ejaculated and said the woman never told him to stop what he was doing.
DARTS said the driver would have received workplace harassment training and the company isn’t liable because the misconduct came from a rider.
Hamilton police said in an email to CBC there doesn’t appear to be any report on file related to the incident.
The woman and DARTS disagree on numerous other points, including:
- Whether or not the woman hit an emergency button to get help.
- Whether or not she asked to be reassigned to other duties because she felt unsafe driving DARTS vehicles.
- Whether or not she asked to go on a leave of absence, whether she was told about documentation needed to take that leave and whether she had proper documentation.
The woman ended up taking an unpaid leave and applying for employment insurance until it ran out after 16 weeks, according to the documents she filed.
“When you enter the workplace, you don’t bargain away basic human rights,” said her lawyer, Adam Savaglio.
When the woman returned to work, she asked to be reassigned but the request was declined, she said in her documents.
The DARTS documents say it didn’t have proper medical papers from her to approve the request.
‘It will stay with me for the rest of my life’
According to the woman, the incident left her with anxiety and post-traumatic stress disorder (PTSD).
The documents she filed say her union, CUPE Local 5167, also declined to help her. CBC Hamilton contacted the union for an interview but didn’t hear back.
DARTS sent a memo to the man’s care worker about appropriate behaviour on the bus, according to its own documents.
DARTS also said that when the union asked about the incident, management explained how they modified the scheduling system to ensure the woman wouldn’t have to drive any routes with that man again — but two years later, that’s exactly what ended up happening, according to her documents.
In May 2018, documents she filed say she was instructed to pick up the same man again.
She said she refused to get him and DARTS refused to help her. She took a medical leave after that and stopped working at DARTS.
“It will stay with me for the rest of my life,” the woman said in an interview about the incident.
HRTO says it is reducing its case count
The woman said the wait to have the matter dealt with through the HRTO has been “painful.”
Savaglio noted how the Supreme Court ruled in 2016 that criminal cases for lesser charges must be heard within 18 months, or 30 months for more serious charges, yet his client has been waiting seven years, which can make it harder to make her case if she has memory lapses or can’t secure witnesses, among other things.
The HRTO declined an interview, but spokesperson Veronica Spada said in an email the tribunal tries to resolve cases within 18 months.
She listed factors that can impact that goal, including:
- Incomplete applications.
- Requests for time extensions.
- Adjournments.
- Deferred files because of other proceedings.
- Failure to comply with case assessment directions.
Spada said 54 per cent of its 8,500 cases aren’t resolved in the 18-month target.
She said the number of HRTO cases peaked at 9,700 in February 2023 and has fallen since then.
Spada wrote: “2023 is the first year since 2013 that the HRTO has been able to actually reduce its total case count, primarily due to applications increasing every year.
“Various initiatives contributed to this reduction, including a redesigned scheduling model and an increased focus on first action reviews and mediations.”
Tribunal Watch Ontario, a public interest group, previously gave CBC News a list of suggestions it thinks can fix the backlog, including:
- Creating a group of specialized adjudicators to clear backlogs.
- Ensuring everyone appointed to a tribunal is qualified.
- Reinstating in-person hearings.
- Creating an adjudicative tribunal justice council that would oversee the system and appointments to depoliticize the process.
- Restoring “stakeholder advisory committees” that were disbanded in 2018 and allow them to provide “meaningful input” into the system.
- Reviewing the HRTO to see if it is complying with its statutory obligations.
The woman in the DARTS case said she hopes to find justice.
“There needs to be accountability … it’s on the path to healing.”
Support is available for anyone who has been sexually assaulted. You can access crisis lines and local support services through this Government of Canada website or the Ending Violence Association of Canada database. If you’re in immediate danger or fear for your safety or that of others around you, please call 911.