The Human Rights Tribunal of Alberta has had a summer of
interesting decisions. Following on its decision respecting
accommodation of childcare needs, already blogged about earlier
here, the Tribunal also released a decision respecting the
responsibility of employers for the conduct of third parties, and
the responsibility to take coordinated action against
harassment in the workplace. Piecemeal responses, no matter
how well-intentioned and numerous, will not suffice.
In its decision, the Tribunal considered a complaint
from a teacher who was harassed by a student through various means
of communication including phone calls, emails, and social network
messages, over a period of nearly two years. The
communications were eventually traced back to the student, who
admitted to having sent them. The harassment persisted even
following disciplinary action from the school. As the school
introduced harsher disciplinary measures, the comments became more
offensive and began to target the complainant on the basis of race
and ancestry. The student ultimately spread false rumours about
having been sexually assaulted by the complainant, triggering a
The school intervened and took increasingly significant steps in
relation to the many acts of harassment. These steps included
suspending the student and her accomplices as well as holding
meetings with the parents of the student. Ultimately the student
was expelled from the school and forbidden from coming back onto
the grounds. The harassment ended when the student finally
left the school district.
The tribunal ultimately found liability on the part of the
employer for the discriminatory actions of the student.
Citing the broad interpretive approach to human rights
legislation, as well as certain jurisprudence from other
jurisdictions on liability of an employer for third party conduct,
the tribunal found that the employer was liable for the
discriminatory acts of the student because the employer had control
over the workplace and authority over the student.
Although the school did much to attempt to stop the harassment,
the tribunal found that the school approached the issues in a
piecemeal fashion which did not adequately deal with the global
issue. The school had many different officials dealing with the
various incidents of harassment, which led to discipline being
administered on an incident-by-incident basis, without reference to
the persistent pattern of harassment.
The case is of particular interest in imposing liability for the
conduct of a third party. Employers might be said to have
some control over their own employees, but one might argue that a
school board has less control over a student. One wonders
what the result would be in the case of a true third party, such as
a customer of an organization, or a parishioner of a church, for
example. Saskatchewan and British Columbia cases have
grappled with the question of third parties, and no doubt further
case law may be needed to flesh out any bright lines.
What can be taken away from this case is that employers can, in
certain circumstances, be liable for discriminatory actions of
third parties if they don't take adequate and
coordinated steps to address the issue. Employers would do
well to ensure that a single capable individual within the
organization is given carriage of the matter, and that patterns and
history are considered, such that action is taken that is
proportional to the gravity of the situation seen as a
*This blog posting was prepared with the assistance of Scott
Sherlock, articling student.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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