Janzen v. Platy enterprises ltd., [1989] 1 S.C.R. 1252 (1989)

Docket Number:20241

Janzen v. Platy Enterprises Ltd., [1989] 1

S.C.R. 1252

Dianna Janzen and Tracy Govereau Appellants v.

Platy Enterprises Ltd., and Platy

Enterprises Ltd., carrying on business under the firm name and style of

Pharos Restaurant, and Tommy Grammas Respondents and

Women's Legal Education and Action Fund (LEAF) Intervener indexed as: janzen v. platy enterprises ltd.

File No.: 20241.

1988: June 15; 1989: May 4.

Present: Dickson C.J. and Beetz, McIntyre, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.

on appeal from the court of appeal for manitoba

Civil rights -- Employment -- Sex discrimination -- Sexual harassment -- Whether sexual harassment in the workplace is discrimination on the basis of sex -- Whether employer liable for employee's actions -- Quantum of damages -- The Human Rights Act, S.M. 1974, c. 65, s. 6(1).

Costs -- Manitoba Human Rights Commission -- Costs should only be ordered against the Commission in exceptional circumstances.

The appellants were employed as waitresses at Pharos Restaurant during the fall of 1982. The restaurant was owned and operated by Platy Enterprises Ltd. and the president of the corporation was the manager of the restaurant. J, during the course of her employment, was sexually harassed by another employee who touched various part of her body and made sexual advances towards her. The offending employee was in charge of the cooking during the evening shift and had no actual disciplinary authority over the waitresses. He nevertheless was represented by himself and by the manager as having control over firing employees. Despite J's objections, this course of conduct persisted for over a month. When the overtly sexual conduct ceased, the employee continued to make the work environment difficult for J by a pattern of uncooperative and threatening behaviour. He was unjustifiably critical of her work and generally treated her in an unpleasant manner. The manager, when informed of the situation, did nothing to put an end to the harassment and J terminated her employment shortly thereafter.

G was the victim of similar behaviour by the same employee. Following a conversation with the manager, the physical harassment ended but it was replaced by a general pattern of verbal abuse by both the manager and the employee who would unjustly criticize her in front of the staff. The harassment culminated with the manager terminating G's employment.

The appellants filed a complaint with the Manitoba Human Rights Commission against Platy Enterprises Ltd., its owners, agents and servants, Pharos Restaurant. The adjudicator found that the appellants had been subjected to persistent and abusive sexual harassment and had been the victims of sex discrimination contrary to s. 6(1) of the Human Rights Act. He awarded exemplary damages and damages for loss of wages and found the employee and the employer, Platy Enterprises Ltd., jointly and severally liable. With the exception of the quantum of damages, the Court of Queen's Bench upheld the adjudicator's decision. The Court of Appeal reversed the judgment of the Court of Queen's Bench. The Court held that sexual harassment of the type to which the appellants were subjected was not discrimination on the basis of sex and that the employer could not be held liable for the sexual harassment perpetrated by its employee.

Held: The appeal should be allowed.

Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is 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. By requiring an employee, male or female, 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. Here, the sexual harassment suffered by the appellants constituted sex discrimination for it was a practice or attitude which had the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

The fact that only some, and not all, female employees at the restaurant were subject to sexual harassment is not a valid reason to conclude that sexual harassment could not amount to discrimination on the basis of sex. Sex discrimination does not exist only where gender is the sole ingredient in the discriminatory action and where, therefore, all members of the affected gender are mistreated identically. While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual's personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that the ascribing of a group characteristic to an individual is a factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value. In nearly every instance of discrimination the discriminatory action is composed of various ingredients with the result that some members of the pertinent group are not adversely affected, at least in a direct sense, by the discriminatory action. To deny a finding of discrimination in the present circumstances would be to deny the existence of discrimination in any situation where discriminatory practices are less than perfectly inclusive. The crucial fact in this case is that it was only female employees who ran the risk of sexual harassment. Indeed, only a woman could be subject to sexual harassment by a heterosexual male, such as the offending employee. A man would not have been subjected to this treatment.

It strains credulity to argue that the sole factor underlying the discriminatory action was appellants' sexual attractiveness -- a personal characteristic -- and that gender was accordingly irrelevant. Sexual attractiveness cannot be separated from gender. These women were subject to a disadvantage because of their being women; no male employee in these circumstances would have been subject to the same disadvantage. Any female considering employment at the restaurant was a potential victim and as such was disadvantaged because of her sex.

The respondent Platy Enterprises Ltd. must be held liable for the actions of its employee given this Court's decision in Robichaud. The offending employee was acting in respect of his employment when he sexually harassed the appellants. His actions were clearly work related. His authority, which had been accorded to him by the respondent, and which derived from his control in running the restaurant and his purported ability to fire waitresses, gave him power over the waitresses. Respondent did not meet its responsibility to ensure that this power was not abused, even after the appellants made specific complaints.

The Court of Queen's Bench should not have reduced the award of damages given to the appellants. The amounts were not inordinate in light of the seriousness of the complaints.

Cases Cited

Applied: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, rev'g [1984] 2 F.C. 799 (C.A.), rev'g (1983), 4 C.H.R.R. D/1272 (H.R. Rev. Trib.), rev'g (1982), 3 C.H.R.R. D/977 (H.R. Trib.); Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 000; referred to: Hufnagel v. Osama Enterprises Ltd. (1982), 3 C.H.R.R. D/922; Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858; Olarte v. DeFilippis (1983), 4 C.H.R.R. D/1705; Giouvanoudis v. Golden Fleece Restaurant (1984), 5 C.H.R.R. D/1967; Bell v. Ladas (1980), 1 C.H.R.R. D/155; Re Dakota Ojibway Tribal Council and Bewza (1985), 24 D.L.R. (4th) 374; Kotyk v. Canadian Employment and Immigration Commission (1983), 4 C.H.R.R. D/1416; Phillips v. Hermiz (1984), 5 C.H.R.R. D/2450; Doherty v. Lodger's International Ltd. (1981), 3 C.H.R.R. D/628; Coutroubis v. Sklavos Printing (1981), 2 C.H.R.R. D/457; Hughes v. Dollar Snack Bar (1981), 3 C.H.R.R. D/1014; Cox v. Jagbritte Inc. (1981), 3 C.H.R.R. D/609; Mitchell v. Traveller Inn (Sudbury) Ltd. (1981), 2 C.H.R.R. D/590; Deisting v. Dollar Pizza (1978) Ltd. (1982), 3 C.H.R.R. D/898; McPherson v. Mary's Donuts (1982), 3 C.H.R.R. D/961; Johnstone v. Zarankin (1985), 6 C.H.R.R. D/2651 (B.C.S.C.), aff'g (1984), 5 C.H.R.R. D/2274 (B.C. Bd.); Foisy v. Bell Canada (1984), 6 C.H.R.R. D/2817; Commodore Business Machines Ltd. v. Ontario Minister of Labour (1984), 6 C.H.R.R. D/2833; Re Mehta and MacKinnon (1985), 19 D.L.R. (4th) 198; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Barnes v. Costle, 561 F.2d 983 (1977); Bundy v. Jackson, 641 F.2d 934 (1981); Henson v. Dundee, 682 F.2d 897 (1982); Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986); Porcelli v. Strathclyde Regional Council, [1985] I.C.R. 177 (E.A.T. (Scot.)), aff'd [1986] I.C.R. 564 (Ct. of Session).

Statutes and Regulations Cited

Canada Labour Code, R.S.C., 1985, c. L-2, s. 247.1 [am. c. 9 (1st Supp.), s. 17].

Civil Rights Act of 1964, 78 Stat. 241, {SS} 703.

Human Rights Act, S.M. 1974, c. 65, s. 6(1) [am. 1976, c. 48, s. 6; am. 1977, c. 46, ss. 2, 3; am. 1982, c. 23, s. 9], 19(4) [en. 1978, c. 43, s. 4], 20 [am. 1976, c. 48, s. 14], 28 [rep. & subs. 1976, c. 48, s. 18; am. 1982, c. 23, s. 24].

Human Rights Code, 1981, S.O. 1981, c. 53, s. 6.

Human Rights Code, S.M. 1987-88, c. 45, s. 19.

Newfoundland Human Rights Code, R.S.N. 1970, c. 262, s. 10.1 [en. 1983, c. 62, s. 3].

Authors Cited

Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services Canada, 1984.

Aggarwal, Arjun P. Sexual Harassment in the Workplace. Toronto: Butterworths, 1987.

Backhouse, Constance and Leah Cohen. The Secret Oppression: Sexual Harassment of Working Women. Toronto: Macmillan of Canada, 1978.

Hickling, M. A. "Employer's Liability for...

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