Canada: The Influence Of U.S. Sexual Harassment Class Actions In Canada

Last Updated: September 4 2018
Article by Lisa Talbot and Sarah E. Whitmore

Sexual harassment and discrimination class actions have never been more in the spotlight than they are today, and employers on both sides of the Canada-U.S. border are examining their policies and practices. While class actions arising out of sexual harassment allegations are less common in Canada, we are seeing trends amid the current deluge of U.S. sexual harassment and discrimination class actions which are making their way to Canada—or have already arrived.

Trends in sexual harassment class actions

Until very recently, sexual harassment class actions in the U.S. have been brought where an organization allegedly has a systemic problem with harassment and discrimination from multiple perpetrators. Increased scrutiny on workplace harassment has seen the rise of "Weinstein-style" actions where allegations rest with an individual in an organization. In the watershed suit Jane Doe v. The Weinstein Company Holdings, the plaintiffs alleged that Harvey Weinstein, with others in the company and the industry helping to cover up his behaviour, engaged in unwanted sexual conduct against the plaintiffs, pressuring them with the threat of professional blacklisting.

In Canada, we are beginning to see Weinstein-style claims focused on individuals, including against Bruce Monk of the Royal Winnipeg Ballet, and Gilbert Rozon of Just for Laughs.

Imbalance in the workplace

Another trend that we identified through our review of U.S. claims is that class actions alleging sexual harassment and discrimination are more likely to arise in highly gendered work environments with pronounced divisions in gender roles.

This trend that can be traced to the roots of sexual harassment class actions: The very first in the U.S. was commenced against the mining company Eveleth Taconite Co., in which it was alleged that the company's predominantly male staff and management engaged in verbal and physical sexual harassment, gender-based discrimination and sexual stereotyping of female subordinate employees. A similar gender dynamic is apparent in almost every U.S. sexual harassment class action since.

An identical trend is developing in Canada, with claims commenced in organizations with pronounced gender divisions, such as the military and police forces, the entertainment and airline industries to name a few. For instance, a proposed class action commenced against West Jet—a company operating in an industry with a pronounced divide between male pilots and female flight attendants—alleges that the company failed to properly investigate and respond to claims of sexual harassment.

Resolving complaints

Class actions don't appear overnight, and the U.S. experience suggests that complaints mishandled or left unnoticed are relevant precursors to class actions. The class actions commenced to date in the U.S. commonly come after years of employers allegedly disregarding or inadequately responding to complaints of harassment and discrimination.

In Canada, too, we see long-standing complaints as part of the equation. The plaintiffs in the lawsuit against the RCMP alleged that female employees were subjected to sexual discrimination, bullying and harassment as far back as 1974—the first year women became eligible to serve.

In two class actions commenced against the Canadian Armed Forces, the complaints go back even farther, alleging widespread institutional failures to prevent sexual assault and harassment by discouraging victims from reporting, failing to have proper training and policies in place, failing to investigate incidents and retaliating against complainants.

These examples underscore that class actions tend to arise in workplaces where sexual harassment and abuse are "open secrets," forcing employers to grapple with years of unresolved complaints when a legal claim is brought forward.

Takeaways for employers

Since the U.S. Supreme Court's 2011 decision in Wal-Mart v. Dukes, U.S. courts have consistently reinforced the importance of rigorous harassment policies to help employers resist claims that they have a policy or practice of encouraging or facilitating harassment.

But the existence of a workplace harassment policy is not enough: to be effective, anti-harassment policies must be actively understood and applied.

A study conducted on behalf of the government of Canada found that, although the majority of workplaces have sexual harassment and violence prevention policies, employees are not actively trained. Employers ignore training at their peril: anti-harassment policies are best deployed as a deterrent and first response against harassment.

Employers should implement regular training on their policies and include a review of their policy as part of onboarding for new employees. Employers may also consider requiring employees and managers to sign off on the policy on a yearly basis.

Policies must be enforced consistently. Employers that make exceptions or fail to follow their requirements when presented with complaints or information from whistleblowers risk additional liability.

Another way to reduce risk is to increase diversity. A key risk factor for sexual violence, harassment and discrimination class actions appears to be strict adherence to traditional gender norms. In a study, 94% of people who reported experiencing sexual harassment were women, and those women who experienced sexual harassment tended to work in environments with a higher ratio of men in positions of power.

The benefits of workplace diversity transcend gender. The government of Canada study also found that people with disabilities and members of a visible minority were more likely to experience harassment. For the greatest impact, employers should see diversity as a broad move toward multiple types of inclusion.

Investigation and dispute resolution

Failing to put the right investigation and dispute resolution mechanisms in place at an organization represents a significant liability for employers. A nominal dispute resolution mechanism is not effective if complainants fear retribution if they speak out, or fail to receive effective follow-up. Employers should ensure employees are made actively aware of the channels available to them, that management knows what their roles are, and that these policies are carried out consistently in practice.

Maintaining rigorous investigation and dispute resolution practices is especially important in Ontario, which has eliminated limitation periods for proceedings based on sexual assault. Similar legislative changes have occurred across Canada.

Given this changing area of law, and against the backdrop of the #MeToo movement on both sides of the Canada-U.S. border, Canadian employers must be vigilant to protect themselves and their employees through rigorous policies that focus on prevention, a diverse workplace and effective dispute resolution.

This article was originally published in The Lawyer's Daily.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions