** Note: This document contains details about sexual violence that may be upsetting to some readers.

B.S. and M.A. (“the Complainants”) were both young women hired to work at a restaurant. They were 17 years old and 15 years old, respectively. They were both supervised by the Respondent. The Complainants both submitted complaints of sexual harassment to the Yukon Human Rights Commission (“the Commission”). B.S. stated that the Respondent made rude sexual comments about her, touched her back, shoulder and arm, poked her in the ribs, grabbed her buttocks, and stood close to her while speaking with her. M.A. stated that the Respondent kicked her buttocks two times and poked her lower back five times. Both Complainants quit their jobs due the Respondent’s conduct.

In making its decision, the Yukon Human Rights Board of Adjudication (“the Board”) considered the following provisions of the Yukon Human Rights Act (“the Act”):

  • Section 7(f), which prohibits discrimination on the basis of sex;
  • Section 9(b), which prohibits discrimination in connection with any aspect of employment; and
  • Section 14(1), which prohibits harassment and retaliation against someone who objects to being harassed

The Board referred to the leading Supreme Court of Canada case on sexual harassment, Janzen v Platy Enterprises. Janzen concluded that sexual harassment is a form of sex discrimination. Sexual harassment can manifest both physically and psychologically. In cases of sexual harassment, complainants need to prove the following four elements:

  • That the conduct was of a sexual nature;
  • That the conduct was unwelcome;
  • That the person alleged perpetrator knew or ought to have known that the conduct was unwelcome; and
  • That the conduct had a negative impact on the workplace and led to negative job-related consequences.

The Board found the Respondent’s conduct toward the two Complainants was of a sexual nature and that it was not welcomed by the Complainants. The Board also found that the Respondent knew or should have known that his actions were unwelcome. In fact, the Board emphasized that this was clearly a situation where there was a power imbalance between the Complainants and the Respondent – he was their supervisor, he was older, male and in a position to hire and fire them. Further, in the context of the Yukon’s history – including the legacy of residential schools – the fact that the Complainants were of First Nation ancestry and the Respondent was of non-First Nation ancestry added another layer of power imbalance between the parties. Finally, the Board concluded that there were negative job-related consequences for the Complainants as a result of the Respondent’s actions. Both quit their jobs, and both described having difficulty finding other work. They both also described being emotionally affected by the experience. Therefore, the Board found that the Respondent’s behaviour was sexual harassment.

Next, the Board assessed whether the Complainants were entitled to any compensation. When awarding damages for injury to dignity, feelings and self-respect, the following factors are generally considered:

The nature of the harassment, whether it was verbal or physical;

  • The degree of aggressiveness and physical contact in the harassment;
  • The duration and frequency of the harassment;
  • The age and vulnerability of the victim; and
  • The psychological impact of the harassment upon the victim.

The Board found that the harassment was mainly physical, though some of it was also verbal. The Board found that Respondent’s actions were aggressive and occurred several times. Both Complainants were uncomfortable and left their job as a result of the Respondent’s actions. Therefore, the Board ordered the Respondent to pay each Complainant $5,000 for injury to dignity, feelings and self-respect. The Board also awarded B.S. $1680 and M.A. $840 for lost wages.

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