Sexual harassment is discrimination. Overturning a
decision of the British Columbia Supreme Court, the British
Columbia Court of Appeal has recently clarified that evidence of
unwelcome conduct of a sexual nature is alone sufficient to
establish discrimination on the basis of sex. This overturned
a lower court decision which had held that the harassment of a
female tenant by the male landlord could not be found to amount to
sexual discrimination without evidence that male tenants were
treated differently. In restoring the decision of the BC
Human Rights Tribunal, the Court of Appeal also confirmed that
sexual harassment of a tenant by a landlord is essentially the same
as sexual harassment in a workplace, under the BC Human Rights
In Friedmann v. MacGarvie (PDF),
the female tenant rented an apartment for just under one
year. During that time, she was subject to incidents of
inappropriate behaviour on the part of the landlord, in the nature
of gifts, sexual comments and inappropriate touching.
Eventually, she left the apartment. She also filed a
complaint with the BC Human Rights Tribunal claiming both
discrimination on the basis of sex and sexual harassment by her
The BC Human Rights Code, does not define sexual harassment as a
category for complaint apart from the prohibition on sex
discrimination. However, because the tenant had made separate
complaints of sex discrimination and of sexual harassment, based on
a variety of different incidents, the Tribunal dealt with the
sexual discrimination complaints first as a separate topic.
The Tribunal found that the tenant had failed to establish that
there was differential treatment as between her and male tenants.
Therefore she had failed to prove sexual discrimination independent
of the harassment complaints. However, relying on the 1989 Supreme
Court of Canada decision in Janzen v. Platy Enterprises
Ltd., the Tribunal went on to find that the inappropriate,
harassing behaviour of a sexual nature amounted to sexual
harassment. That breached the Code's prohibition of sex
discrimination without the need for further evidence of
In a review by the BC Supreme Court, the judge disagreed.
He set aside the Tribunal's decision. He rejected the
Tribunal's conclusion that there could be a finding of sexual
discrimination through harassment against a woman where there was
no proof of differential treatment towards men.
The Court of Appeal restored the decision of the Tribunal.
It reaffirmed that the Supreme Court of Canada's decision
in Janzen stands for the proposition that sexual
harassment constitutes discrimination on its own. One does not
require proof of differential treatment on the basis of sex.
In a sexual harassment case, the very nature of the sexual
harassment can be sufficient to establish that the gender of the
complainant was a factor in the adverse treatment.
Since Janzen arose in the employment context, the Court
also considered whether or not the reasoning in that case applied
equally to the prohibition against discrimination in tenancies. It
concluded that it did. The Court explained that tenants are
entitled to quiet possession of their rented property. That
is essentially the same right as the right of employees to have a
workplace free from sexual harassment.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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