By: Linda McKay-Panos
This blog article originally appeared in LawNow Vol. 41(3), 2017 and is reprinted with permission.
There have been several recent news stories about harassment issues in Canadian workplaces. For example, a 2013 review of the Calgary Police Services workplace was recently released, containing detailed allegations of sexual harassment, intimidation, bullying and even sexual assault within the force. Another example occurred when a class-action lawsuit was launched alleging discrimination and harassment within the RCMP. The lawsuit was settled in 2016, resulting in an apology and a potential $100 million in payouts.
What does Canadian human rights law have to say about situations where there is a work environment that is poisoned by harassment and discrimination? The law recognizes that workplace harassment that is based on a ground that is covered by human rights law, such as gender, disability, race or sexual orientation, is discrimination. Discrimination is covered in both federal and provincial human rights legislation across the country. Harassment can include physical conduct (e.g., unwelcome touching), verbal behaviour involving comments (e.g., name-calling) and non-verbal behaviour (e.g., pictures, gestures). The Alberta Human Rights Commission has stated:
“A poisoned work environment is created when a workplace is hostile or unwelcoming because of insulting or degrading comments or offensive actions aimed at an employee or others.”
It is possible to sue in the courts for a remedy for harassment and discrimination, but there is no recognized tort of discrimination. The two situations involving police forces cited above provide examples of workplaces that could be described as hostile. Once it has been established that there has been discrimination (harassment) that amounts to a poisoned work environment, there are a few legal considerations and options available.
It is always hoped that the organization becoming aware of a problem that appears to be widespread can take action to develop internal harassment and discrimination policies and remedies. Education of all staff about their rights and responsibilities is critical. However, even if the employer seeks to remedy the situation with these efforts, sometimes the problems continue. Employees may be forced to take legal action to obtain a remedy. One such approach is a human rights complaint. If the complaint is successful, the Human Rights Commission can order:
- an apology:
- human rights education;
- re-instatement of an individual who has been fired or has had to resign due to the working conditions;
- damages paid to the complainant for hurt feelings; and
- the development of an internal complaints procedure
among other remedies. There are some limitations to this approach, however. Complaints must be made within the statutory limitation period (e.g., in Alberta, within one year of the last incidence of discrimination). If the complainant has realized too late that there is a possible complaint available, the Commission cannot hear it, even if it otherwise has merit. In addition, it may be quite difficult to prove an allegation of harassment if there are no witnesses or if witnesses are reluctant to come forward to corroborate allegations of discrimination. Third, re-instatement may not be feasible if the people or person who was harassing the employee will still work in close proximity to the complainant.
Finally, and perhaps most significantly for the Calgary Police Service situation, the Alberta Human Rights Act does not have jurisdiction to accept complaints of systemic discrimination. The Commission can take an individual complaint of systemic discrimination or may group together individual complaints about the same workplace. It can then use the information the complainant(s) provides about systemic discrimination to make a remedy for that individual complainant, which may indeed apply to the whole workplace.
The Commission does not have jurisdiction to investigate a situation without a complaint; nor does it have jurisdiction to resolve group or systemic complaints. This is not necessarily the situation across Canada: the Canadian Human Rights Commission, Ontario Human Rights Commission, and Manitoba Human Rights Commission can investigate complaints of systemic discrimination. Complaints may be filed on behalf of a group of people or an individual. Once the complaint is heard and systemic discrimination is found, the remedies can address the entire workplace.
What does Canadian human rights law have to say about situations where there is a work environment that is poisoned by harassment and discrimination? The situation of the RCMP could have been the subject of a complaint to the Canadian Human Rights Commission, but a different legal course was pursued.
It is possible to sue in the courts for a remedy for harassment and discrimination, but there is no recognized tort of discrimination. In the 1981 Bhadauria v. Seneca College  case, the Supreme Court of Canada ruled that an individual or group in a class action suit cannot sue directly for discrimination, as this is not recognized as a legal cause of action. However, it is possible to sue for damages for the intentional infliction of emotional suffering (a recognized tort), caused by discriminatory behaviour. The remedy is money damages. When there is a large group of potential claimants, it can make sense financially to launch a class action suit as, together, they can bear the costs of a lawsuit. Individuals can opt in and demonstrate that they are members of the class of litigants (e.g., they are a victim of harassment and discrimination in that workplace and they suffered damages from the emotional suffering they experienced). However, individual plaintiffs/complainants often cannot afford to launch a lawsuit and thus choose to complain to the human rights commission, which is a relatively inexpensive process.
There are some differences that can influence the decision to pursue a lawsuit rather than a human rights complaint when there is systemic discrimination. A lawsuit may cost more, but the amount of money awarded in a successful lawsuit can be higher than the hurt feelings monies awarded by human rights commissions. On the other hand, the remedies available from human rights commissions can include education and policy implementation, as well as reinstatement, remedies not generally available from tort or contract cases launched in courts.
The two above-noted instances of allegations of workplace harassment and discrimination certainly demonstrate heightened awareness of the problem of systemic discrimination, which often occurs in workplaces where the majority of employees are traditionally from one gender. It can be challenging to address the cultural changes that occur in a workplace once members of the opposite gender are introduced. This is why education about discrimination, workplace policies, sexual harassment and implementation of anti-harassment and discrimination policies are critical in all workplaces. Not only can allowing this illegal behaviour result in expensive settlements for the employer, the human emotional costs are immeasurable.