**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
The Complainant submitted a discrimination complaint to the Yukon Human Rights Commission (“the Commission”), alleging that when employed by the Respondent company, she was subject to comments of a sexual nature by Mr. F, who was a supervisor. She alleged that she made a complaint to Mr. D, the general manager. An investigation was undertaken – the Complainant’s claims were proven, and the investigation made recommendations to the company with respect to Mr. F and his behaviour. The recommendations were never carried out. The Complainant alleged that when she complained about the Respondent company’s failure to implement the recommendations, she was demoted and received a pay cut. When she responded to that in a negative manner, her employment was terminated.
In deciding this case, the Yukon Human Rights Board of Adjudication (“the Board”) considered the following issues:
- Did the alleged sexual comments directed to the Complainant by Mr. F constitute sexual harassment?
- If so, should the Respondent company be held liable for the statements?
- Could the subsequent actions by the Respondent (i.e. her demotion and pay cut) constitute retaliation?
First, the Board found that it did not have enough evidence to determine whether Mr. F’s comments constituted sexual harassment. In fact, the Board ruled that the comments made by Mr. F had not been proven on a prima face basis to constitute harassment. In other words, at the first blush, Mr. F’s comments did not constitute harassment. Section 13(2) of the Yukon Human Rights Act (“the Act”) defined harassment as vexatious conduct that a person knows or ought to know is unwelcome. The leading Supreme Court of Canada case Janzen v Platy Enterprises Ltd provides a similar definition. The Board found that a reasonable person would only know that their comments were unwelcome if the person receiving the comment expressly shared their discomfort. In this case, the Board found that the Complainant only protested to Mr. F’s comments one time. Once she did, Mr. F ceased to make comments.
Since the Board did not find sexual harassment, the second issue was no longer relevant.
Third, the Board considered whether the Complainant’s demotion and firing was a consequence of her filing a sexual harassment complaint. Section 28 of the Act prohibits a person from retaliating against any other person that pursue their rights under the Act. In this case, the Board found that there was no retaliation. Indeed, the Complainant received her letter of demotion from Mr. D 15 days prior to her filing the human rights complaint. The letter of termination was received the same day as the filing of the human rights complaint. The letter of termination made specific reference to a letter written by the Complainant, in which she advised that she was going to take hours off of work. It was clear that the letter of termination was a response to the Complainant’s letter.