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Proposed Class Action for Sexual Harassment Fails

- The Law on Workplace Sexual Harassment in Canada / Class actions  / Proposed Class Action for Sexual Harassment Fails

Proposed Class Action for Sexual Harassment Fails

The recent decision[1] of Baltman J. in Rivers v Waterloo Region has denied certification to a proposed claim involving, in part, a plea for sexual harassment, more precisely the tort of harassment.

The proposed class was 178 female uniformed officers of the Waterloo Police Service.

The case failed for the primary reason that the proposed class members are or were all employees in the bargaining unit, based on the well established case law of Weber v Ontario Hydro. That aspect of the decision is not surprising. Even though the claim contained a plea under the Family Law Reform Act for dependants’ remedies, the law has consistently denied the right to sue civilly for this reason alone.

More significantly, however, the decision continued to state that the proposed common law tort of harassment could not proceed as the manner of pleading the case could not re-shape what was, in essence, a claim of sexual harassment in substance. For that reason, the court continued, the claim must be proceed as an administrative human rights claim and not a civil action.

This is an important point as it ignores many successful tort claims which have awarded generous damage sums for such claims.[2] With respect, it is submitted that this aspect of the decision is wrong.

This being said, the B.C. Supreme Court struck a proposed class action, based in part, on a similar argument. The claim was in this instance based on an alleged breach of contract, as opposed to a tort claim. The breach was founded on Westjet’s “Anti-Harassment Promise” on which the proposed damage claim for adverse conduct was based.

The claim was determined to be, in substance, one of damages for discrimination and on that reasoning, was dismissed as it ought to have brought before the Canadian Human Rights Tribunal.

The case was also dismissed on the plea that the employees were entitled to workers’ compensation remedies and hence denied the right to sue for workplace harassment. [3]This argument could also have been raised in the Waterloo case and was not.

 

[1] Released July 13 2018

[2] See Summary of tort awards

[3] Certain aspects of the claim were allowed to continue. This was not a motion for certification but a defence motion to dismiss as disclosing no reasonable cause of action.

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