Despite a growing awareness of issues of workplace sexual harassment, Canadian workers still experience this type of gender-based violence at alarming rates.[1]
In 1989, the Supreme Court of Canada defined workplace sexual harassment as unwelcome conduct of a sexual nature that negatively affects the work environment or leads to adverse job-related consequences.[2] In the same ruling, it concluded that workplace sexual harassment constitutes sex-based discrimination for the purposes of the Human Rights Code.
This was a significant advance for workers rights, and particularly the rights of women workers who are disproportionately targeted by workplace sexual harassment. Workers who experienced unwanted sexual conduct that negatively impacted their work environment now had access to human rights tribunals across the country to seek redress for this discrimination.
However, in a previous decision the Supreme Court had ruled that the Human Rights Code foreclosed the possibility of any civil lawsuit based on discrimination, finding that the appropriate forum was the Human Rights Tribunal which was created by statute for the purpose of hearing and deciding matters related to discrimination.[3] The interaction of these two Supreme Court cases meant that workers who experienced workplace sexual harassment had to bring their claims through the Tribunal, not the courts.
As the #MeToo Movement gained momentum and a greater understanding of the toxicity of workplace harassment, including sexual harassment, racism, ableism, and other forms of discrimination spread, courts have begun to acknowledge the validity of claims in constructive dismissal as another possible remedy for workers who experience discrimination and workplace harassment.
Constructive dismissal is a subset of wrongful dismissal, where an employer breaches a fundamental term of the employment contract. For example, if an employer significantly reduces your work hours or pay, demotes you, or moves your position to another city without your consent, it may be impossible for you to continue your work. Although your employer hasn’t fired you, they have constructively dismissed you if they breach a term of your contract that makes it impossible for you to continue in that position. The law of constructive dismissal provides workers with access to the same remedies they would be entitled to if they had been wrongfully dismissed or fired without notice or severance pay. Constructive and wrongful dismissal are contractual disputes, so the question of whether an employer has constructively or wrongfully dismissed a worker will depend on the terms of the contract.
In British Columbia, the right to a safe and healthy work environment free from sexual harassment is a term of every worker’s contract, so workplace sexual harassment is not only discrimination, but also a breach of contract. In some cases, this breach of contract might amount to constructive dismissal.
In the recent case of Deol v Dreyer Davison LLP, 2020 BCSC 771,[4] the BC Supreme Court heard an application to dismiss Ms. Deol’s case of constructive dismissal and considered the argument that that sexual harassment fell into the exclusive jurisdiction of the Human Rights Tribunal.
The Court rejected that argument, finding that claims in contract, including constructive dismissal based on sexual harassment, are not solely statutory claims (which should be brought before the appropriate statutory tribunal), but are also actionable at common law. This landmark decision recognizes the significant harms of workplace sexual harassment and the limited solutions available through Human Rights Tribunals. While it does not open the door to civil suits on the basis of workplace sexual harassment alone, when plead properly as constructive dismissal, the same facts that support a human rights complaint of workplace sexual harassment can also form the basis of a claim in constructive dismissal.
Workplace norms have changed significantly over the past 30 years, with women and gender diverse people increasingly participating in the workforce and a more nuanced understanding of sexism and gender-based discrimination becoming commonplace. This recent decision reflects the growing understanding of how workplace sexual harassment is more than discrimination, it is a breach of the fundamental term of every employment contract that workers will be treated with dignity and respect.
If you are experiencing workplace harassment, we are here to help.
Liza Hughes
Barrister & Solicitor
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