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1Supreme Court of Canada in Janzen v Platy Back to book Page ‣
2There are also common law remedies for conduct which, in essence, is sexual harassment but as the common law has not allowed a tort claim under this name, the plaintiff has effectively resorted to traditional tort remedies. For these claims, there is no need to define the term.Back to book Page ‣
3The Manitoba Act was later amended to allow for a specific sexual harassment complaint prior to the decision of the Supreme Court, which was hence of academic note on this issue.Back to book Page ‣
5as was the case in Simpson v CACBack to book Page ‣
6See the decision of the B.C. Court of Appeal in Friedmann v MacGarvie Back to book Page ‣
7The term “sexual harassment” is also defined in many statutory regulations and professional codes of conduct. Generally, the definition remains much the same. See for example the PEI Code of Professional Conduct and Discipline relevant to the Police Act.Back to book Page ‣
9There is the occasional anomaly, however. The Human Rights Act of Newfoundland & Labrador prevents only those persons in a “position to confer, grant or deny a benefit” to make such an unwelcome sexual advance or reprisal.Back to book Page ‣
11Required in Ontario only to show employer liability Back to book Page ‣
13The decision of the Tribunal in Vanderputten v Seydaco (Wright) is an example of the application of the amended Code in interpreting the rights of a person undergoing gender transition. Back to book Page ‣
15As the B.C. statute still does.Back to book Page ‣
16The British Columbia Court of Appeal in School District 44 v Jubran. The tribunal had found for the applicant which was reversed on first review. The Court of Appeal disagreed and restored the award of the Human Rights Board. Back to book Page ‣
17Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII18 (SCC), [1985] 2 S.C.R. 536Back to book Page ‣
18For example, as in the decision of the Manitoba Human Rights Adjudication Panel Emslie v Doholoco and that of the Nova Scotia Court of Appeal in NS Construction Safety Assn v NS Human Rights Commission; Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paragraphs 43-48; Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 (C.H.R.T.) Back to book Page ‣
19Often the language used in the statute to define “sexual harassment” or “harassment” is vexatious, which means without reasonable or probable cause or excuse; harassing; annoying as stated by the Federal Court of Appeal in Carroll v Canada.Back to book Page ‣
21Madam Justice Topolniski in the 2007 Alberta Queen’s Bench decision of Foerderer v Nova; Cuff v. Gypsy Restaurant (1987), 8 C.H.R.R. D/3972 (Ont. Bd. Inq.), at para. 31531;Back to book Page ‣
22Foerderer, as above.Back to book Page ‣
23the decision of Mr. Justice Whitten in Fleming v Ricoh Back to book Page ‣
27The issue of a “consensual” workplace romance, given an inequality in the employment relationship is discussed separately elsewhere.Back to book Page ‣
28The consequences which follow from the particular conduct will, however, reflect the gravity of the offensive conduct.Back to book Page ‣
30As was stated in in Lavoie v Calabogie Peaks (Chapman) HRTOBack to book Page ‣
31Bell v. Ladas (1980), 1 C.H.R.R. D/155 (Ont. Bd. Inq.Back to book Page ‣
32such as “nice tits’ and “how’s your love life”Back to book Page ‣
34See Romano v. 1577118 Ontario Inc., 2008HRTO9(CanLII), 2008 HRTO 9, at paras. 64 to 69)Back to book Page ‣
36Such was also the conclusion of the Nova Scotia Board of Inquiry in Slaunwhite v Bay Landing Dining Room in which the respondent had exposed himself to the complainant.Back to book Page ‣
37A similar single dramatic incident occurred in C.K. v H.S.Back to book Page ‣
38Watt v. Niagara (Regional Municipality) (1984), 5 C.H.R.R. D/ 4840 (Ont. Bd. of Inquiry)Back to book Page ‣
39Bannister v General Motors The Court of Appeal clearly rejected the test being that of “wearing persistence” to justify termination of a manager for just cause. It did, however, find that this manager’s misconduct was pervasive and repeated to female subordinates generally.Back to book Page ‣
40A good example of such a finding is the decision of the Tribunal in Shroff v Tipco (Muir) which it was determined that the complainant suffered abusive behaviour by co-workers who taunted him due to his inability to have a child with his spouse. This conduct was actionable as a complaint under the Code, yet not of sufficient substance to allow for the determination of a poisoned work environment.Back to book Page ‣
41Ontario Court of Appeal Johnson v General Motors. This is not a case of sexual harassment, but one alleging racial discrimination. The Court of Appeal overturned the trial judge on this issue;Back to book Page ‣
422013 decision of Clarke v Syncrude, upheld on appeal to the Alberta Court of Appeal in November of 2014.Back to book Page ‣
43referenced above, in Bell v Ladas(1980) 1 CHRR D/155 (Shime)Back to book Page ‣
44The legislation at the time, as was the case with the Manitoba statute referenced in Janzen, did not then specifically reference sexual harassment to be a violation of the Code and hence the complaint was based on gender. This is not material to the question under discussion.Back to book Page ‣
45Emphasis is from the original decision.Back to book Page ‣
46The decision of Professor Ratushny in Aragona v Elegant Lamp Company Ltd. and Fillipitto(1982) 3 CHRR D/1109 at p. D/110Back to book Page ‣
471982 decision of the Board of Inquiry in Torres v Royal Kitchenware and Guercio (Cumming)Back to book Page ‣
48Law v Noonan (Sanderson) a Tribunal decision of March 2013Back to book Page ‣
49In Aragona v Elegant Lamp (Ratushny) 3 CHRR D/1109,Back to book Page ‣
50Emphasis added in original text.Back to book Page ‣
51The 1998 decision of Bannister v General MotorsBack to book Page ‣
52Much to the same effect is the 2013 decision of the Court of Queen’s Bench of Alberta in Clarke v Syncrude of Mr. Justice Macleod which speaks to the changing view in society’s acceptance of such conduct: (upheld on appeal although this issue was not raised on appeal)Back to book Page ‣
53in Smith v Menzies Chrysler (Chadha)Back to book Page ‣
55section 46.1 Ontario Human Rights CodeBack to book Page ‣
56Such conclusions were reached in Skopitz v Intercorp Excelle, which was based on a disability claim and Galbraith v Acres (affirmed on appeal) which was based on age.Back to book Page ‣
58This is controversial. To date it has been foreclosed in Ontario and Nova Scotia and allowed in B.C.Back to book Page ‣