**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.

Company T operated as a convenience store. Mr. B was the secretary of the corporation and the manager of the daily business operations. Mr. S was a contractor with Company T. He was responsible for minor repairs and “handy-man work” around the convenience store. The Complainant was hired by Mr. B to work at the store. While working at the store, Mr. S inquired about the Complainant’s sexual orientation. The Complainant acknowledged that she liked women. Later that month, a female co-worker reported to the Complainant that Mr. S was making sexually explicit comments about her. Subsequently, Mr. S approached the Complainant and made direct sexually explicit comments. During this time, the Complainant also noticed that Mr. S was leering at her body. She approached Mr. S and told him to stop. The Complainant approached Mr. B several times, but the issue was not resolved. Although Mr. S did apologize and stopped making comments directly to the Complainant, co-workers advised the Complainant that Mr. S was continuing to make comments about her sexual orientation behind her back. The Complainant was told to take care of the situation herself. The Complainant was subsequently let go from her job as Mr. B decided that in light of the conflict between the Complainant and Mr. S, the complaint to the RCMP, and for other reasons, he would terminate the Complainant’s employment.

The Complainant filed a human rights complaint with the Yukon Human Rights Commission (“the Commission”). She alleged that the Mr. B, Company T and Mr. S were in contravention of the following sections of the Yukon Human Rights Act (“the Act”)

  • Section 13, which prohibits harassment
  • Section 6 (f), (g) and (l) which prohibits discrimination on the basis of sex, sexual orientation, and actual or presumed association with other individuals or groups whose identity or membership is determined by any of the grounds listed in the Act, respectively;
  • Section 8 (b), which prohibits discrimination in connection with employment.

The Yukon Human Rights Board of Adjudication (“the Board”) started by determining whether this was a case of sexual harassment. It relied on the Supreme Court of Canada case Janzen v Play Enterprises Ltd., which defines sexual harassment as “unwelcome conduct of a sexual nature” that negatively impacts the work environment or leads to negative job-related consequences for the victim. Sexual harassment is discrimination on a basis of sex.

To determine whether there was harassment the Board relied on the Supreme Court of Canada case Matthews v Memorial University of Newfoundland. This case outlined a test to determine if there is harassment:

  • Was the conduct vexatious from the perspective of the Complainant?
  • Did the Respondent know or ought to have known his conduct was unwelcome?

In this case, the Complainant clearly established that the comments and conduct of Mr. S made her feel uncomfortable and created a negative work environment. Next, the Board found that the Mr. S should have known that his conduct was unwelcome. The Complainant clearly communicated to Mr. S and Mr. B that the comments were not welcome or appreciated.

Next, the Board considered whether Mr. S’s employer should be held responsible for his discriminatory actions. The Supreme Court of Canada has held that employers should be held liable for their employee’s discriminatory actions, so long as the behaviour is work-related. This is because the employer is in the best position to fix a distressing situation and provide a healthy work environment. This is reflected in section 32 of the Act, which also holds that employers can be held responsible for the discriminatory conduct of their employees. In this case, Mr. B’s response to the Complainant was to not take the situation seriously. The Complainant was told to take care of the issue herself. When this did not work, Mr. B asked the Complainant and Mr. S to stay away from each other. Therefore, the Board concluded that the employer should be held responsible.

The Board ordered Mr. B and Company T to establish a clear sexual harassment policy that will be brought to the attention of all current and new employees. The Board ordered a sign to be posted indicating that sexual harassment in the workplace will not be tolerated in a place that is easily accessible by employees. Further, the Board ordered the Respondents to pay the Complainant for the financial losses she incurred from the date of leaving the employment of the Respondent until she regained full employment. In addition, the Board awarded the Complainant $2000 for injury to dignity, feelings and self-respect.

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