Sexual Harassment Laws in Canada
| Author | Shirish P. Chotalia |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| DOI | http://doi.org/10.1177/135822910500700408 |
International
Journal
of
Discrimination
and
the
Lmr,
2005,
Vol.
7,
pp. 199-227
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed
in
Great Britain
SEXUAL HARASSMENT LAWS IN CANADA
SHIRISH
P.
CHOTALIA*
Pundit & Chotalia, Edmonton, Alberta, Canada
ABSTRACT
This paper analyses the law
of
sexual harassment in Canada, including the notion
of
the 'reasonable woman', indicating a broad legislative coverage. However,
despite the recognition
of
a clear human rights base and the quasi-constitutional
character bestowed on the law by the courts, awards remain low and a compelling
and consistent body
of
supportive jurisprudence
is
yet to emerge.
INTRODUCTION
At
the
dawn
of
the
new
millennium
jurists
debate
the
extent
of
the
transmutation
of
equality laws
into
substantive
avenues
of
recourse
for
the disenfranchized.
Both
legislation
and
jurisprudence
have
tried
to
keep stride
with
changing
social
mores
of
gender
parity.
One
example is
found
in
sexual
harassment
laws
and
jurisprudence
that
have legally
censured
such
conduct
for
more
than
a decade.
Ironically, it was the
American
judicial
appointment
process in the
1992
Hill-Thomas
hearings1
that
captured
the
imaginations
of
Canadians
and
arrested
their
norms
and
consciences,
thus
shaping
a
culture
of
awareness
and
zero tolerance. Yet,
over
a
decade
later
Canadian
law
appears
to
be relatively static in the
areas
of
substan-
tive
standards
of
evaluation
and
damage
assessments.
We
are
obliged
to
ask,
'What's
new?'
SEXUAL
HARASSMENT
IN
THE
EARLY YEARS
Sexual Harassment is not
Sex
Appeal
Since 1989
it
has
been established
that
sexual
harassment
constitutes
sex discrimination. Sex
discrimination
is
prohibited
by
all
human
rights
statutes
in
Canada
at
both
the
federal2
and
provincial
leveP
In
the
pivotal
decision
of
Janzen
v.
Platy Enterprises
Ltd.,
4
the
Supreme
Court
of
Canada
ruled
that
sexual
harassment
amounts
200
to sex
discrimination
within
the
meaning
of
the
human
rights
codes.
In
confirming
the
precedent
of
Bell
v.
Ladas5
the
Supreme
Court
reversed
the
Manitoba
Court
of
Appeal
decision
of
Justices
Huband
and
Twaddle
6
who
confused
sexual
attraction
with
sexual
harassment.
Twaddle
J.
A.
concluded
that
sexual
harassment
based
on
the
'sex
appeal'
of
the
victim
could
constitute
sex
discrimination;
7
while
Huband
J. A.
stated,
"I
am amazed to think that sexual harassment has been equated with
discrimination on the basis
of
sex
...
I am amazed to think that an
employer could be held vicariously responsible for that form
of
discrimination on the part
of
an employee,
or
that a corporate
employer could
be
found 'personally responsible' for a sexually
malevolent employee, except under the rarest
of
circumstances. "8
Dickson
C. J. rejected these
arguments
and
with
respect
to
the
former
wrote:
'To
argue
that
the
sole
factor
underlying
the
discrimi-
natory
action
was
the
sexual
attractiveness
of
the
appellants
and
to
say
that
their
gender
was
irrelevant
strains
credulity. Sexual
attrac-
tiveness
cannot
be
separated
from
gender.'
The
Supreme
Court
of
Canada
in
correcting
such
stereotypes
and
myths
facilitated
the
creation
of
a
culture
of
human
rights
and
protections.
We
may
observe
that
today
most
Canadian
human
rights
statutes,
such
as
the
federal
human
rights
statute,
explicitly legislate
protection
against
sexual
harassment.
9
The
Canadian
Human
Rights
Act
states:
14.
(I)
HARASSMENT~
It
is
a discriminatory practice,
(a) in the provision
of
goods, services, facilities
or
accommoda-
tion customarily available to the general public,
(b) in the provision
of
commercial premises
or
residential accom-
modation,
or
(c)
in matters related to employment,
to harass an individual on a prohibited ground
of
discrimination.
(2) SEXUAL HARASSMENT
~
Without limiting the generality
of
subsection (1), sexual harassment shall, for the purposes
of
that
subsection,
be
deemed to
be
harassment on a prohibited ground
of
discrimination.
The
Ontario
Human
Rights
Code defines
harassment
as
meaning
'engaging
in a
course
of
vexatious
comment
or
conduct
that
is
known
or
ought
reasonably
to
be
known
to
be
unwelcome'.
10
Further,
the
Board
is expressly
authorized
to
make
an
order
to
prevent
harassment
against
a
person
who
knew
or
ought
to
have
known
of
the
harassment
and
who
had
the
authority
to
reasonably
prevent
it.
11
Indeed,
the
Ontario
Board
shall
remain
seized
of
the
matter
and
can
re-convene
to
deal
with
any
repetition
of
the
harassment.
12
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