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Labour (Fed) - Sexual Harassment. Canadian Pacific Railway Company v. Sauvé
In Canadian Pacific Railway Company v. Sauvé (Fed CA, 2024) the Federal Court of Appeal allowed an employer's appeal from a employee's JR, here of "a decision of a labour adjudicator that allowed in part the respondent’s unjust dismissal complaint under section 240 of the Canada Labour Code".
These extracts involve the CLC's sexual harassment provisions:[19] In disciplinary matters, the role of the adjudicator is to determine whether the misconduct alleged against the employee has been established by the employer, who bears the burden of proof. If it has, the adjudicator assesses whether dismissal is the appropriate measure in the circumstances (McKinley v. BC Tel, 2001 SCC 38 at para. 49; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 at para. 49).
[20] In the case at hand, the appellant alleges that the respondent sexually harassed a subordinate, thereby violating the Harassment Policy.
[21] At the time of the events in question, section 247.1 of the Code defined sexual harassment as follows:247.1 In this Division, sexual harassment means any conduct, comment, gesture or contact of a sexual nature:" "
247.1 Pour l’application de la présente section, harcèlement sexuel s’entend de tout comportement, propos, geste ou contact qui, sur le plan sexuel :" "
(a) that is likely to cause offence or humiliation to any employee; or" "
a) soit est de nature à offenser ou humilier un employé;
(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion." "
b) soit peut, pour des motifs raisonnables, être interprété par celui-ci comme subordonnant son emploi ou une possibilité de formation ou d’avancement à des conditions à caractère sexuel. [22] In addition, the Code provided for an obligation on the employer to make every reasonable effort to ensure that no employee is subjected to sexual harassment (section 247.3 of the Code). Under section 65 of the CHRA, the employer may be held jointly and severally liable for acts committed by an employee (including an officer) in the course of their employment that constitute sexual harassment under subsection 14(2) of the CHRA. Sections 247.1 et seq. of the Code have since been repealed and replaced by new provisions in Part II of the Code and the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, the application of which is not at issue here.
[23] In accordance with the obligation to provide its employees with employment free of sexual harassment (section 247.2 of the Code), the appellant adopted the Harassment Policy, which provided, among other things, that acts of harassment, sexual or other, were unacceptable and such conduct was not acceptable at any level of the Company (Appeal Book at 1635). The Harassment Policy defined sexual harassment as follows:Sexual harassment may be defined as any unsolicited and unwelcome conduct, comment, gesture or contact of a sexual nature that:"
Par harcèlement sexuel, on entend tout comportement, commentaire, geste ou contact de nature sexuelle, non sollicité ou importun, susceptible :" "
(a) is likely to cause offence or humiliation; or
a) d’offenser ou d’humilier un employé;" "
(b) might, on reasonable grounds, be perceived as placing a condition of a sexual nature on conditions of employment, including any opportunity for training or promotion.
b) de donner des motifs raisonnables de croire qu’une condition de nature sexuelle est liée à un emploi ou à une possibilité de formation ou de promotion."
Appeal Book at 1637
Appeal Book at 1649" [24] The Harassment Policy specified that sexual harassment could occur on or off company property, and could include but was not limited to suggestive remarks, jokes, innuendos or taunting in a sexual context, unwarranted touching, leering, and compromising invitations (Appeal Book at 1638). The principles set out in the Harassment Policy were reiterated in the appellant’s Code of Ethics.
[25] In addition to the definition set out in the Code, the Supreme Court of Canada, after reviewing several definitions adopted by courts, authors, and legislative authorities, stated the following in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, on the concept of sexual harassment in the workplace:Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas... and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self‑respect of the victim both as an employee and as a human being.
(Janzen at 1284) [26] Although that case concerned complaints filed with the Manitoba Human Rights Commission for sex discrimination, this definition has been taken up in the context of labour and employment law (Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ON CA) at para. 53; Bannister v. General Motors of Canada Ltd., [1998] O.J. No. 3402 at para. 1 (Q.L.), 1998 CanLII 7151 (ON CA); van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73 (CanLII) at para. 165; Fleming v. Ricoh Canada Inc., 2003 CanLII 2435 (ON SC) at para. 8; Leach v. Canadian Blood Services, 2001 ABQB 54 (CanLII) at para. 86; Syndicat des Travailleuses et Travailleurs de PJC Entrepôt c. Groupe Jean Coutu (P.J.C.) inc., 2016 CanLII 50736 (QC SAT) at para. 150; Marois v. Sleeman Brewing & Malting Co. Ltd, 2004 QCCRT 580 (CanLII) at para. 83).
[27] This definition makes it clear that sexual harassment in the workplace has three elements: (a) sexual conduct (b) that is unwelcome ("“non sollicitée”") and (c) that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment (Janzen at 1284).
[28] In assessing whether the impugned conduct was unwelcome (undesired, unsolicited or untolerated), the power imbalance between the victim and the person whose conduct is at issue is a relevant factor (Payne v. Bank of Montreal, 2013 FCA 33 at paras. 64, 71; Simpson at para. 64; Dupuis v. British Columbia (Ministry of Forests), 1993 CanLII 16472 (BC HRT) at paras. 61, 62).
[29] Although romantic and sexual relationships in the workplace remain permitted, even between individuals in authority and subordinates (Payne at para. 67; Dupuis at para. 38), evidence of consent and of the unwelcome nature of the conduct poses particular challenges when sexual harassment is alleged in an apparently consensual relationship (Simpson at paras. 62, 64; Mallioux v. N. Yanke Transfer Ltd., [1999] C.L.A.D. No. 40 at para. 74 (Q.L.), 1999 CanLII 19559 (CA LA); Dupuis at paras. 39–44).
[30] The issue of sexual harassment in the workplace is complex and, in many cases, depends on the credibility of the testimony, given the general lack of witnesses. The criteria for assessing the credibility of testimony include the likelihood of a version, a witness’s interest in testifying, the lack of contradiction on essential elements, and the corroboration of facts (Leach at para. 70; Mornard et Union des artistes, 2005 CanLII 92493 (QC CRT) at para. 90; Marois at paras. 88, 89).
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