The following topics are reviewed in the Annotated Glossary:
(Click on the following links)
Good Faith Occupational Qualification
Public Services, Facilities and Goods
Race and Colour or Ethnic, National and Social Origin
The term "discrimination" is not defined in the Code but the Supreme Court of Canada has settled upon a definition which applies to interpreting both human rights legislation and section 15 of the Charter of Rights and Freedoms (Gibbs v. Battlesford and Dist. Co-operative Ltd. (1996) 27 C.H.R.R. D.87). The definition states:
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capabilities will rarely be so classed.
The law currently makes a distinction between direct and indirect discrimination. Direct discrimination occurs when an employment rule directly discriminates on the basis of a prohibited ground of discrimination. A rule that says no persons of colour are to be hired directly discriminates on the basis of race. A rule that says airline pilots must have a vision acuity of 20/20 discriminates on the basis of physical disability for those who are sight impaired. In cases of direct discrimination, the employer is entitled to establish that the employment rule or practice is a good faith occupational qualification. To do so the employer must show that the rule or practice was implemented in good faith and that it is rationally connected or reasonably required for the performance of the job. Airlines usually can establish that the requirement that pilots have 20/20 vision is reasonably necessary or rationally connected to the safe operation of air planes and thus can successfully rely upon the good faith occupational defence. An employer cannot establish that a "no persons of colour employed here" rule is rationally connected or reasonably necessary for any type of work.
A second type of discrimination is referred to as adverse effect discrimination. It occurs when an employment rule is neutral on its face, that is, it does not target persons characterized by the prohibited grounds of discrimination, but the rule has the effect of discriminating against those persons. For example, an employment rule which states that employees have to work on Friday nights does not directly discriminate, however, that rule adversely effects persons of the Seventh Day Adventist Church because their religious beliefs prohibit working on Friday nights. Likewise, an employment rule which states that employees must attend work from 8:00 a.m. to 5:00 p.m. will adversely effect persons who cannot attend work during these hours because of their disabilities. In cases of adverse effect discrimination the employer has a defence if it can establish that it accommodated the employee to the point of undue hardship.
See section 9 for annotations dealing with direct and indirect discrimination. As well, see the Annotated Glossary for a discussion about good faith qualifications and the duty to accommodate.
Systemic discrimination has been defined by the Supreme Court of Canada in Action Travail des Femmes v. Canadian National Railway Company (1987) 8 C.H.R.R. D.4210 as follows:
In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces, for example, that women "just can’t do the job" (see the Abella Report, pp. 9-10). To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.
. . . . . .
I have already stressed that systemic discrimination is often unintentional. It results from the application of established practices and policies that, in effect, have a negative impact upon the hiring and advancement prospects of a particular group. It is compounded by the attitudes of managers and co-workers who accept stereotyped visions of the skills and "proper role" of the affected group, visions which lead to the firmly held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false.
In National Capital Alliance on Race Relations v. Department of Health and Welfare Canada (1997) 28 C.H.R.R. D.179 a Canadian Human Rights Tribunal found that Health Canada discriminated on a systemic basis against employees who are members of racial minorities by failing to promote them on an equal basis to senior management positions. The Tribunal accepted the evidence of experts regarding several important indicators of systemic discrimination. It found that members of visible minorities are under represented in senior management in Health Canada. For the five years from 1990 - 1995 the average utilization rate is 33 percent. Utilization rates measure representation in management as a percentage of availability. The Tribunal found that a utilization rate of 80 percent is generally considered acceptable. The Tribunal also found that members of visible minorities are concentrated at the lower levels of the scientific and professional positions and they are "bottlenecked" in this feeder group to the senior management positions. The Tribunal outlined the key element in arriving at a finding of systemic discrimination:
The essential element then of systemic discrimination is that it results from the unintended consequences of established employment systems and practices. Its effect is to block employment opportunities and benefits for members of certain groups. Since the discrimination is not motivated by a conscious act, it is more subtle to detect and it is necessary to look at the consequences or the results of the particular employment system.
Courts have interpreted human rights legislation so as to permit employers and service providers to avail of the defence of accommodation to the point of undue hardship in cases of adverse effect discrimination. See section 9 for a discussion of adverse effect discrimination.
The employer or service provider has the onus of showing that it cannot accommodate the discriminated person to the point of undue hardship. In Central Okanagan School District No. 23 v. Renaud (1992) 95 D.L.R. (4th) 577 the Supreme Court of Canada stated that the use of the phrase "undue hardship" means that employers have to establish more than negligible hardship before they can avail of the defence.
In Rodgers v. Newfoundland (Department of Culture, Recreation and Youth) (1994) 25 C.H.R.R. D.235 the Newfoundland Court of Appeal stated that "the duty to accommodate inherently comprehends the adjusting of a rule or practice to a person’s disability, but it does not extend to actually changing the basic purpose of that rule or practice."
In Woolworth Canada Inc. v. Newfoundland (Human Rights Commission) (1995) 25 C.H.R.R. D.227 the Court of Appeal found that the Trial Division had erred when it ruled that a board of inquiry had no jurisdiction to hear the complaint of a person fired because he was unable to perform the duties of his job. The Court noted that there existed numerous cases where findings of discrimination based on disability have occurred where the complainants at the time of termination were unable to work. Further, under certain circumstances there may be a requirement to accommodate employees by permitting a period of time to recover or seek treatment and it is the role of a board of inquiry to determine what an appropriate period of time might be for that recovery or treatment.
In Central Alberta Dairy Pool v. Alberta Human Rights Commission (1990) 12 C.H.R.R. D/417 the Supreme Court of Canada discussed some of the factors that may be relevant to a consideration of what constitutes undue hardship:
I begin by adopting those identified by the board of inquiry in the case at bar - financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities.
The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or
the case with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.
Section 9 of the Code prohibits discrimination with respect to employment based on the prohibited grounds listed therein but the term "employment" is not defined.
Courts have ruled that "employment" as found in human rights legislation should be given a broad and liberal interpretation. The Alberta Court of Queen’s Bench in Cormier v. Alberta (Human Rights Commission) 1984 5 C.H.R.R. D.2441 reviewed the meaning of employment in a variety of legal contexts. It concluded that the term should be given a broad meaning so as to cover independent contractors. It stated:
A liberal interpretation of the meaning of the verb "employ" justifies application of the broad definition of the verb found in the Oxford English Dictionary: "to use the services of (a person) ... in the transaction of some business." Webster’s Third New International Dictionary is to the same effect: "to use or engage the services of (e.g. a lawyer to straighten out a legal tangle)." In my view, these dictionary definitions accurately reflect the common Canadian usage of "employ". That verb is of course applied commonly to persons who work exclusively for, and are paid only by, one other individual (or firm or corporation). But the common usage of the verb "employ" is not restricted to that situation. I think the example given by Webster, which I need not repeat, reflects Canadian usage. We say, "I am employing Jones to fix the plumbing in my house," or "I am employing Smith to paint my fence," even though I am paying Jones or Smith for only one service, they make their living by receiving payment from a number of people who want to use their services, and they use their own tools.
In Prior v. Newfoundland (Department of Health) 1996 25 C.H.R.R. D.268 a Newfoundland board of inquiry ruled patients are the "employers" of fee for service physicians within the meaning of section 9 of the Code. The board concluded that the Department of Health, the Medical Board and the Medical Association were not employers or "persons acting on behalf of" employers of fee for service physicians as contemplated by section 9 of the Code, therefore, it did not have jurisdiction to hear Dr. Prior’s complaint against these entities. The decision was successfully appealed to the Court of Appeal on different grounds and was remitted back to a different board of inquiry for a rehearing of the preceding issues.
GOOD FAITH OCCUPATIONAL QUALIFICATION
A good faith occupational qualification (gfoq) is a defence to a claim of discrimination in the employment context. It is not defined in the Code but the Supreme Court of Canada has commented upon the term extensively. Etobicoke (Borough) v. Ontario (Human Rights Commission) (1982) 3 C.H.R.R. D.781 is the hallmark decision which explored the scope of the concept. The term was defined as:
To be a bona fide occupational qualification and requirement a limitation... must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.
Thus, a gfoq is an employment rule or practice which discriminates against persons characterized by the prohibited grounds of discrimination and which can satisfy the following two tests:
a) the rule or practice was imposed honestly and in good faith; and
b) the rule or practice is rationally connected with the work that has to be done and is reasonably necessary to ensure the efficient and effective performance of that work.
The Court stated in Etobicoke that the burden of establishing a gfoq is on the employer who wished to use this defence. Further, the employer must prove a gfoq on the balance of probabilities and must submit real evidence, not impressions, unfounded opinions or folklore, to a board of inquiry to successfully substantiate a claim that an employment rule or practice is a gfoq.
In Wabush Mines v. Power 1987 30 C.H.R.R. D.87 the Newfoundland Court of Appeal explained the importance of exploring for reasonable alternatives to an employment rule prior to declaring it a gfoq:
Exploration of reasonable alternatives is essential to the concept of a bona fide occupational requirement. Sopinka J. writing for the majority of the Supreme Court of Canada emphasized this in Large, supra, where he states at 750[D/11, para. 30] that such inquiry:
... is fundamental to the concept of a BFORQ defence. Justification of a general rule that treats all employees as having the same characteristics, notwithstanding that some will not, is dependent on proof that it was not practical to identify and exempt from the general rule those who lacked the requisite characteristics. As Wilson J. stated in Alberta Dairy Pool, at p.513:
... justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments.
The Court also stated that employers must frame precisely the employment rule or practice upon which they base a refusal to employ. If gfoq’s lack precision, they may subject persons protected by the Code to the very prejudice the Code intends to eliminate.
The Court stated as follows with respect to the employer’s honest concern for safety when attempting to establish a gfoq.
In dismissing this appeal, it is recognized that it will result in confirming an employer’s liability for not hiring an individual because of honest and genuine concerns for his personal safety and protection. Considered in isolation, the justice of such a proposition might be considered open to some question. However, if the essential purpose of human rights legislation is to be achieved, occupational requirements must not only be shown to have been imposed bona fide, but to have been reasonably necessary. Objective justification of a refusal to employ is absolutely essential if the disabled are to enjoy the same equal opportunity as everyone to the fullest extent of their capacities. Concern over the welfare of the individual, no matter how genuinely held, is not enough and, indeed, without objective support might smack of paternalism which, however genuinely and sincerely motivated, is one of the very approaches to disabilities that the spirit and intent of human rights legislation is designed to discourage.
Marital Status is not defined in the Code. The term is defined in some other jurisdictions. For example, section 10(1) of the Ontario Human Rights Act states:
Marital status means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage.
In Leshner v. Ontario (1992) 16 C.H.R.R. D.184 an Ontario board of inquiry struck out the portion of the definition of the term spouse in the Ontario Human Rights Code which limited the term to persons of the opposite sex. The case was not appealed.
In Gallagher v. Hamilton-Wentworth (1996) 28 C.H.R.R. D.81 an Ontario board of inquiry ruled that the definition of marital status did not include a relationship characterized as "dating". There are situations where some people are discriminated against not because they are married per se, but because they are married to a specific person. For example, an employer may terminate an employee because the employee is married to a person who is disliked by officials of the employer. In Gallagher, the board reviewed the definition of marital status and determined that it covers only the status of being married and therefore did not extend protection to discrimination based on the identity or characteristics of a spouse. Having regard to the definition of marital status as found in the Ontario Code, which states that marital status means "the status of being married..." the term cannot include the identity of a spouse.
In Dewetter v. Northland Security Guard Services Ltd. (1996) 29 C.H.R.R. D.8 a British Columbia council of human rights reviewed recent authorities on whether discrimination based on marital status includes discrimination because of the identity of a particular spouse. Like Newfoundland, the B.C. legislation does not define marital status. The council adopted the following comment from Mark v. Porcupine (1984) 6 C.H.R.R. D.2538.
... the fact that discrimination arises because of the "marital status" of a complainant with respect to a particular person, rather than simply because of the marital status of the complainant, should not matter... if an employer discriminates against a person on the basis of her being married to a particular person, even though he does not discriminate against married persons generally, the particular aggrieved person would, in my opinion, be unlawfully discriminated against.
Newfoundland was the first jurisdiction to include political opinion as a prohibited ground of discrimination in its legislation. The term is not defined in the Code. The case law interpreting the term is sparse.
In Jamieson v. Victoria Native Friendship Centre (1994) 22 C.H.R.R. D.250 a human rights complainant alleged that the Victoria Native Friendship Centre discriminated against him because of his political belief. The complainant was a member of the Mohawk Nation and believed in the sovereignty of the nation. He had made his views well known to the Centre. The Centre refused to consider the complainant for a position precipitating his complaint to the Human Rights Commission. The council of human rights, the equivalent of a Newfoundland board of inquiry, adopted the following dictionary definitions:
political 1. of or affecting the state or its government; of public affairs; of politics... 4. Belonging to, or taking a side in politics; relating to a person’s or organization’s status or influence...
The council ruled that it had jurisdiction to hear the complaint as the complainant’s views constituted a "political belief" but dismissed the complaint based on the specific facts of the case.
In Potter v. College of Physicians and Surgeons of British Columbia (1988) 31 C.H.R.R. D.63 a physician complained to the B.C. Human Rights Commission that she was criticized by the President of the Respondent for debating in public the issue of discrimination against lesbian couples by the medical professor and for bringing the issue to the attention of various cabinet ministers. This criticism precipitated a human rights complaint based on political opinion and a council of human rights ruled that there was a distinction to be drawn between political belief or opinion per se and the forum in which that political opinion should be expressed. It characterized the complainant’s allegations as the later and ruled that it did not have jurisdiction to hear the matter.
The Code does not specifically prohibit discrimination based on pregnancy, however, such discrimination is characterized as sex discrimination and is therefore prohibited under section 9. The Supreme Court of Canada, in Brooks v. Canada Safeway Ltd. (1989) 59 D.L.R. 321 explained the rationale for describing discrimination because of pregnancy as sex discrimination. It stated:
In retrospect, one can only ask - how could pregnancy discrimination be anything other than sex discrimination? The disfavoured treatment accorded Mrs. Brooks, Mrs. Allen and Mrs. Dixon flowed entirely from their state of pregnancy, a condition unique to women. They were pregnant because of their sex. Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.
In Butt v. Smith (1992) 20 C.H.R.R. D.39 a Newfoundland board of inquiry found that a course of comment which has the effect of denigrating women because they are pregnant or jeopardizing their work atmosphere would constitute sexual harassment. The board found that the complainants were subjected to comments indicating that the employer could not afford to have its female employees get pregnant and threats that pregnant employees would be "zapped" with a radar gun. However, given the facts of the case, the board found that the employer had no knowledge that these comments were unwelcome.
In Poirier v. British Columbia (Ministry of Municipal Affairs, Recreation and Housing) (1997) 29 C.H.R.R. D.87 (B.C. Trib.) it was held that a decision prohibiting breastfeeding at work or in public constituted sex discrimination because "The capacity to breastfeed is unique to the female gender... therefore... discrimination on the basis that a woman is breastfeeding is a form of sex discrimination."
PUBLIC SERVICES, FACILITIES AND GOODS
Section 6(1) prohibits discrimination based on the prohibited grounds in the provision of goods, services and facilities customarily available to the public. The term is not defined in the Code but an understanding of it can be gleaned from reviewing a number of decisions which apply the phrase.
The Supreme Court of Canada in Gay Alliance Toward Equality v. Vancouver Sun (1979) 97 D.L.R. (3d) 377 stated that services refer to such things as restaurants, bars, taverns, service stations, public transportation and public utilities.
The following are further examples of services customarily available to the public:
a) city proclamations such as gay pride week. Hill v. Woodside (1998 unreported N.B. Bd. of I.); Oliver v. Hamilton (City) (1995) 26 M.P.L.R. (2d) 278 (Ont. Bd. of I.)
b) amateur hockey teams and associations. Blainey v. Ontario Hockey Association (1986) 7 C.H.R.R. D.3529 (Ont.C.A.)
c) registration of nursing assistants. LeDrew v. Council of Nursing Assistants (1989) 10 C.H.R.R. D.6259 (Nfld. Bd. of I.)
d) unemployment insurance benefits. Floyd v. Canada (Employment and Immigration Commission) (1993) 20 C.H.R.R. D.381 (Cdn.Trib.)
e) access to medical services. Quenel v. London Educational Health Centre (1995) 28 C.H.R.R. D.474 (Ont. Bd. of I.)
f) artificial insemination. Korn v. Potter (1996) 25 C.H.R.R. D.141 (B.C.S.C)
RACE AND COLOUR OR ETHNIC, NATIONAL AND SOCIAL ORIGIN
In Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995) 29 C.H.R.R. D.35 an Ontario Board of Inquiry made the following comment about "race and colour, ethnic and national origin" which is not defined in the Code:
The complaint alleges discrimination on a number of grounds which are often combined as a kind of wide net to get at certain complex discriminatory conduct: race, colour, ancestry, ethnic origin and place of origin.
Race was defined by Dr. Henry as "a biological concept which refers to the inherited physical and physiological characteristics of a group of people", the most common of which are skin colour and hair texture. Colour is therefore a characteristic within a race. Ancestry was defined in Cousens v. Canadian Nurses’ Association (1981), 2 C.H.R.R. D/365 (Ont. Bd.Inq.) to mean "family descent ... determined through the lineage of one’s parents through their parents". These grounds were not actively pursued in either evidence or submissions.
Other than that Mr. Espinoza was born in Ecuador, no evidence was led with respect to his personal ancestry, race or colour. It is not known whether his ancestry, race or colour stemmed from the indigenous people, European colonizers of his country or both. It appears to have been assumed that it was the former.
Ethnic origin and place of origin are not defined in the Code and have not been discussed at length in the case law. In the Concise Oxford Dictionary, "ethnic" is defined as "pertaining to race, ethnological" and " ethnology", as the "science of races and their relations to one another and characteristics".
In Anatomy of Racism: Canadian Dimensions by Hughes and Kallen (1974), as quoted in Keene, supra, at p. 56, the concept of "ethnicity" is discussed as follows:
The most important criterion underlying the concept of ethnicity is that of common ancestry or peoplehood. Common ancestry, in turn, is a multi-faceted concept implying at least three criteria: biological descent from common ancestors, maintenance of a shared ancestral heritage (culture and social institutions), and attachment to an ancestral territory (homeland). These criteria provide the foundation for the actual or assumed distinctiveness of an ethnic category - a people classified as alike on the basis of ethnicity. The criterion of biological descent from common ancestors underlies actual or assumed physical distinctiveness. When this criterion of ethnicity is emphasized in classification, we may speak of a racially-defined ethnic category. The criterion of attachment to an ancestral territory or homeland underlies actual or assumed distinctiveness deriving from national origin. When this criterion of ethnicity is emphasized we may speak of a nationally-defined ethnic category. The criterion of maintenance of an ancestral heritage underlies actual or assumed socio-cultural distinctiveness. When this criterion is emphasized we may speak of a culturally-defined ethnic category. Frequently, the criterion of ancestral heritage emphasizes one socio-cultural phenomenon such as language or religion. When the aspect of culture selected for emphasis is language, we may speak of a linguistically-defined ethnic category; when it is religion, we may speak of a religiously-defined ethnic category.
Although these distinctions are analytically useful, it is important to note that a given ethnic category may be arbitrarily classified on the basis of any one or any combination of these criteria of ethnicity.
As can be seen from the above, all persons have a certain "ethnicity", which may stem from a variety of common denominators, not all of which are immutable or innate. This was confirmed by Dr. Henry in her testimony.
There is also nothing inherent in the above definition which would limit "ethnicity" to minority groups within a larger group in a given society. The common perception of ethnic equating with minority would appear to be a reflection only of the fact that larger ethnic groups might take for granted what smaller groups seek to preserve and define.
Dr. Henry defined "ethnic" and "ethnic origin" as follows:
Ethnic refers to place of origin of a group, that is in geographical terms, the actual place in the world that they come from. It refers also to their cultural patterns and cultural beliefs which are shared amongst them. And with respect to the cultural shared features, the ones that are most important in human populations are such things as a shared language, a shared religion, and other social characteristics such as family organization, kinship, and other aspects like that.
Included also in the definition of ethnic or ethnic group is the individual’s own subjective identification as a member of X group. So that there are both objective characteristics of an ethnic group, such as I have described, and there are also subjective features such that an individual identifies as a member of a particular group.
Dr. Henry added that, in the field of "ethnicity", the word ethnic refers to a person’s background, including such factors as place of origin, geographic and cultural, linguistic, religious and sometimes racial.
In Halleran v. House of Haynes (Restaurant) Limited and Douglas Haynes (1994) 24 C.H.R.R. D.269 a complainant alleged she was harassed by her employer by virtue of being constantly referred to as a "baywoman". The term was used to indicate that nothing worthwhile was to be expected from a person of that origin. The board stated "The term "baymen" in Newfoundland is to be used to describe inhabitants of coastal settlements outside the city of St. John’s." The board stated the following with respect to the term "social origin":
It is necessary to determine if the term social origin as referenced in Section 12 of the Code would embrace the complainant’s status as a person who originated from an area which can be identified as a Newfoundland outport.
The term "social" is defined in Funk and Wagnalls Dictionary as "of or pertaining to society or its organization" and the term society as "a number of persons regarded as having certain common interests, similar status".
The term "origin" in Webster’s Dictionary was defined as (1) ancestry, parentage (2) a rise, beginning or derivation from a source.
I am satisfied that in a fair and liberal construction the term social origin can include the context of a class of people who are defined by their origin within a prescribed geographical area. Accordingly, I find that the comments and remarks directed to Ms. Halleran did constitute harassment because of social origin.
The terms religion and religious creed are not defined in the Code. In Jazairi v. Ontario (Human Rights Commission) (1997) 29 C.H.R.R. D.428 the Ontario Supreme Court, General Division, stated that in Canadian human rights legislation, the terms "creed", "religion" and "religious belief" are used synonymously and are distinguished from the term "political belief". The Court did not go on to define religion or religious creed.
In Ryder v. Cooper Market Ltd. (1990) 13 C.H.R.R. D.38, two individuals who belonged to the Evangel Tabernacle refused to work on Sundays. Their employer argued that the complainants’ religious beliefs did not clearly forbid work on the Sabbath, as, for example, does the Seventh Day Adventist Church. A British Columbia council of human rights rejected that argument stating that the protection from discrimination should not be read narrowly and the sincere convictions of the complainants regarding their need to observe a Sunday Sabbath was enough to evoke the protections in the human rights legislation.
In Drager v. I.A.M. and A.W. 20 C.H.R.R. D.119, a member of the Seventh Day Adventist Church filed a complaint of discrimination against his employer and union for failing to accommodate his religion by scheduling him to work on his Sabbath. A British Columbia council of human rights stated that an analysis of the complaint required answering three questions. First, was the Seventh Day Adventist Church a religion? As all parties agreed that it was, the council did not elaborate on the scope of the term. Second, was the complainant’s religious beliefs sincere and genuine. This inquiry centered around the complainant’s testimony and his credibility. Third, was the complainant’s refusal to work on Friday nights the result of his religious beliefs. The council had the benefit of testimony from a Pastor of the Church which established that not working on the Sabbath was a tenet of the Church and further, that the complainant had discussed the matter with him.
Section 8 of the Code prohibits harassment on the basis of sex of an occupant of a commercial or self-contained dwelling unit while section 12 prohibits harassment in an establishment. Section 13 prohibits sexual solicitation. Section 2(g) defines harass. The Supreme Court of Canada in R v. Robichaud (1987) 40 D.L.R. (4th) 577 confirmed that sexual harassment is a form of sex discrimination and thus prohibited in employment by virtue of section 9, and the provision of services by virtue of section 6.
The Supreme Court of Canada dealt with the issue of sexual harassment in the workplace in Janzen v. Platy Enterprises Ltd. (1989) 10 C.H.R.R. D.6205. The Court made the following pronouncements with respect to the matter:
Emerging from these various legislative proscriptions is the notion that sexual harassment may take a variety of forms. Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands. Victims of sexual harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one. Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments, but where no tangible economic rewards are attached to involvement in the behaviour.
. . . .
The main point in allegations of sexual harassment is that unwelcome sexual conduct has invaded the workplace, irrespective of whether the consequences of the harassment included a denial of concrete employment rewards for refusing to participate in sexual activity.
In Sheppard v. Harbour Diner Ltd. (1996 unreported) a Newfoundland board of inquiry found that a female waitress was sexually harassed by the owner operator of a restaurant. The board found that the allegations as set out in her complaint form were proved. The form stated:
I commenced employment at Harbour Diner on October 13, 1993. I was employed as a cook and cashier. Since October, Mr. Lawrence has hugged me and put his arms around me. On July 23, 1994, when I arrived at work Mr. Lawrence asked me to:
1. Pull up my shirt and show him my breasts - twice he said this;
2. He hugged me and kissed my cheek;
3. He told me I had bedroom eyes;
4. He told me it would be "hot and sticky today having sex with my boyfriend";
5. When I refused to pull up my shirt he told me I had nothing to be ashamed of - meaning my breasts "they were perfect", he said;
6. He rubbed his back against my breasts and said it felt good; I backed off and he said, "I shouldn’t be saying this to you, should I" and I said "no, you shouldn’t."
The board found that even though these events occurred on a single day they constituted a course of conduct within the meaning of harass as found in section 2(g) of the Code. Further, both the individual operator of the restaurant and the corporate owner were held liable for the sexual harassment.
In Barnes v. Thomas Stratton Warehousing Co. Inc. (1993) 22 C.H.R.R. D.427 a Newfoundland board of inquiry found a supervisor, and his corporate employer liable for sexual harassment when the supervisor advised a female employee during the first week of work that she could "thank her ass" for the job. The supervisor also stated that the employee would have to have sex with him if she wanted a full time job and that she would have to wear short skirts to sell the company’s product.
In Butt v. Smith (1992) 20 C.H.R.R. D.39 a Newfoundland board of inquiry stated that comments which had the effect of denigrating women because they are pregnant or jeopardizing their work atmosphere constituted sexual harassment.
Boards of inquiry have found that overweight persons who have been subject to demeaning comments which indicate that the complainant was physically unattractive and sexually undesirable constituted sexual harassment (see Shaw v. Levac Supply Ltd. (1990) 14 C.H.R.R. D.36 and Fornwald v. Astrographic Industries Ltd. 27 C.H.R.R. D.317)
In VanBerkel v. MPI Security Ltd. 28 C.H.R.R. D.504 (B.C. Trib.) a female employee was sexually harassed by the husband and wife owners of a security firm. The board of inquiry made a finding of sexual harassment even though the complainant did not object to the sexual course of conduct. The board observed that as the complainant aspired to be a police officer and the respondents had strong ties to the policing community her failure to object was understandable given her career aspirations. The case also confirms that sexual harassment can occur between two persons of the same sex.
Sexual orientation was added as a prohibited ground of discrimination to the Code in December 1997. The amendment did not define the term. The term itself is broad and it may take some time for its scope to be settled by boards of inquiry and the Courts. To date it has been used to cover heterosexual relationships (see Egan v. Canada (1991) 87 D.L.R. (4th) 320), homosexual relationships (see Knodel v. British Columbia (Medical Services Commission) 58 B.C.L.R. (2nd) 356) and bisexual relationships (see Clinton v. Ontario Blue Cross (1993) 18 C.H.R.R. D.377).
On whether the prohibition against discrimination on the basis of sexual orientation protects gays and lesbians status versus their conduct, note the following from Bewley v. Ontario (1997) 31 C.H.R.R. D.218 (Ont.B.I.)
In my view, the Supreme Court in Mossop, and later in Egan, settled the debate concerning whether lesbians and gays are afforded protection in their individual capacity (status) and/or in their relationships (conduct). I conclude that no purpose is served by distinguishing the protection of the "status" of individual gay men or lesbian women from discrimination but leaving them vulnerable in their "relationships" with each other. The protection enshrined in s. 1 of the Code must therefore be interpreted to include the conjugal relationships of lesbians and gays.