Janzen v. Platy Enterprises Ltd.

Janzen v. Platy Enterprises Ltd.
Collection
Supreme Court Judgments
Date
1989-05-04
Report
[1989] 1 SCR 1252
Case number
20241
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Manitoba
Subjects
Civil procedure
Constitutional law
Notes
SCC Case Information: 20241
Decision Content
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 Sexual Harassment" (1988), 17 Man. L.J. 124.
MacKinnon, Catharine. Sexual Harassment of Working Women: A Case of Sex Discrimination. London: Yale University Press, 1979.
United States. Equal Employment Opportunity Commission. Guidelines on Discrimination Because of Sex, 29 C.F.R. 1604.11(a) (1985).
APPEAL from a judgment of the Manitoba Court of Appeal (1986), 43 Man. R. (2d) 293, 33 D.L.R. (4th) 32, [1987] 1 W.W.R. 385, 87 CLLC {PP} 17,014, 8 C.H.R.R. D/3831, setting aside the judgment of Monnin J. (1985), 38 Man. R. (2d) 20, 24 D.L.R. (4th) 31, [1986] 2 W.W.R. 273, 86 CLLC {PP} 16,009, 7 C.H.R.R. D/3309, which affirmed in part the decision of a Board of Adjudication (1985), 6 C.H.R.R. D/2735. Appeal allowed.
Aaron L. Berg and G. Hannon, for the appellants.
No one appeared for the respondents.
Louise Lamb, for the intervener.
//The Chief Justice//
The judgment of the Court was delivered by
THE CHIEF JUSTICE -- On January 24, 1983, Dianna Janzen made a complaint to the Human Rights Commission of Manitoba against Platy Enterprises Ltd., its owners, agents and servants, Pharos Restaurant. The complaint reads:
I am a female resident of Manitoba.
I was employed as a waitress at the Pharos Restaurant, located at 9 St. Mary's Road, from August to October, 1982. I was hired by Phillip Anastasiadis, who I believe is part owner of the restaurant.
During my period of employment at the restaurant, I was continuously sexually harassed by Tommy, the cook. On many occasions Tommy grabbed my legs and touched my knee, bum and crotch area. When I resisted his sexual advances, he told me to shut up or he would fire me. He began to yell at me in front of staff and criticize my work.
During the second week of October 1982 I spoke to Phillip about Tommy's behaviour. He told me he couldn't do anything about it. Under the circumstances I felt I had no alternative but to quit my job effective October 31st, 1982.
I believe I have been subjected to discriminatory terms and conditions of employment and that I have been discriminated against because of my sex contrary to Section 6 of The Human Rights Act.
Five days later, on January 29, 1983, Tracy Govereau made a complaint of a similar nature against the same parties, alleging sexual harassment by "Tommy, the cook".
The main issue in this appeal is whether sexual harassment in the workplace is discrimination on the basis of sex, and therefore prohibited by s. 6(1) of the Manitoba Human Rights Act, S.M. 1974, c. 65.
I
Facts
The appellants, Dianna Janzen and Tracy Govereau, were employed as waitresses at Pharos Restaurant in Winnipeg, during the fall of 1982. The restaurant and two others of like name were owned and operated by the corporate respondent Platy Enterprises Ltd. The president of the corporation, Eleftherois (also known as Phillip) Anastasiadis, was the manager of the restaurant and the cook at the restaurant on the first shift. The respondent, Tommy Grammas, was the cook during evening shifts. He did not have an ownership interest in the restaurant, nor was he an officer of the corporation. Although Grammas had no actual disciplinary authority over the waitresses, he was represented by himself and by Anastasiadis as having control over firing employees.
The appellant Janzen was employed at the restaurant from August 21, 1982 until October 31, 1982. Approximately two to three weeks after she commenced her employment, the respondent Grammas began engaging in unwelcome conduct of a sexual nature. He began to make sexual advances towards her. Often this touching occurred when Janzen was burdened with duties as a waitress and unable to defend herself. Despite Janzen's clear and repeated objections to Grammas' behaviour, this course of conduct persisted for over a month.
Dianna Janzen's troubles did not end when the overtly sexual conduct ceased. Grammas continued to make the work environment difficult for her by a pattern of uncooperative and threatening behaviour. He was unjustifiably critical of her work, refused to respond co-operatively to her food orders and generally treated her in an unpleasant manner. Towards the middle of October, Janzen endeavoured to speak to Anastasiadis about Grammas' behaviour. Anastasiadis was unable to talk to her at the time, but according to Janzen's testimony, he said "If it is about Tommy, I can't do anything about it." At a second meeting in late October, Janzen described to Anastasiadis in detail the conduct to which she had been subjected. His reaction was unsympathetic. Janzen's evidence was that Anastasiadis treated the matter lightly and insinuated she was responsible for Grammas' conduct. Anastasiadis admits to telling Janzen she was over-reacting. Anastasiadis made no attempt to put an end to the harassment and, shortly after her discussion with him, Janzen terminated her employment. She was out of work for one month before finding employment at another restaurant. She gave evidence, accepted by the adjudicator, that the physical and emotional consequences of the harassment she endured included insomnia, vomiting and inability to concentrate.
The appellant Govereau was a waitress at Pharos restaurant from October 13, 1982 to December 11, 1982. At the end of her first week of employment, Grammas approached her and kissed her on the mouth. From that point onwards, Grammas repeatedly grabbed Govereau and attempted to kiss her. He constantly touched various parts of her body, including her stomach and breasts. On one occasion, when Govereau was washing dishes in the kitchen, Grammas came up behind her, put his hands under her sweater and attempted to fondle her breasts. Grammas also harassed Govereau verbally, commenting frequently and inappropriately on her appearance. Grammas' conduct persisted despite forceful objections.
As a result of conversations with another waitress at the restaurant, Carol Enns, Govereau decided to raise the matter with Anastasiadis. In mid-November she met with Anastasiadis and discussed Grammas' behaviour for approximately fifteen minutes. According to Govereau's testimony, Anastasiadis did not seem particularly surprised or perturbed by the situation. At one point during the conversation he asked Govereau why she let Grammas treat her that way. After Govereau's discussion with Anastasiadis, the physical harassment of her by Grammas came to an end. It was replaced, however, by a general pattern of verbal abuse by both Grammas and Anastasiadis. Govereau maintained that she was unjustly criticized by the two men and that both of them would yell at her in front of the other staff for no reason. There had been no criticism of her work prior to her decision to complain about Grammas. Govereau's testimony was supported by Carol Enns. The harassment culminated with Anastasiadis terminating Govereau's employment on December 8, 1982, ostensibly as a result of a customer complaint. Govereau worked three additional days, until December 11. She was unable to find alternative employment until August 1983. Govereau testified that as a result of the harassment by Grammas and Anastasiadis she "felt dirty, wasn't relaxed, couldn't sleep or concentrate in class".
As I have mentioned, both Janzen and Govereau filed complaints with the Manitoba Human Rights Commission alleging that they had been victims of discrimination on the basis of sex contrary to s. 6(1) of the Human Rights Act.
Grammas' employment at Pharos Restaurant was terminated before the hearing of the complaints and he did not participate in any of the proceedings.
II
Legislation
The Human Rights Act, S.M. 1974, c. 65, as amended, reads:
6 (1) Every person has the right of equality of opportunity based upon bona fide qualifications in respect of his occupation or employment or in respect of training for employment, or in respect of an intended occupation, employment, advancement or promotion, and in respect of his membership or intended membership in a trade union, employers' organization or occupational association; and, without limiting the generality of the foregoing
(a) no employer or person acting on behalf of an employer shall refuse to employ, or to continue to employ or to train the person for employment or to advance or promote that person, or discriminate against that person in respect of employment or any term or condition of employment;
(b) no employment agency shall refuse to refer a person for employment; or for training for employment; and
(c) no trade union, employers' organization or occupational association shall refuse membership to, expel, suspend or otherwise discriminate against that person; or negotiate, on behalf of that person, an agreement that would discriminate against him;
because of the race, nationality, religion, colour, sex, age, marital status, physical or mental handicap, ethnic or national origin, or political beliefs or family status of that person.
28 (1) Where the board of adjudication decides that there has been no contravention of the Act by any party, it shall dismiss the complaint.
28 (2) Where the board of adjudication decides that a party has contravened any provision of the Act, it may do one or more of the following things:
. . .
(b) Make an order requiring the party who contravened the Act to compensate the person discriminated against for all, or such part as a board may determine, of any wages or salary lost or expenses incurred by reason of the contravention of this Act;
(c) Order the person who contravened the Act to pay to the person discriminated against, a penalty or exemplary damages in such amount as the board may determine, if the board is of the opinion that the person discriminated against suffered damages in respect of his feelings, or self-respect.
In 1987, subsequent to the adjudication of the complaints of Janzen and Govereau, the Manitoba Human Rights Act was repealed and replaced with The Human Rights Code, S.M. 1987-88, c. 45. Section 19 of the new Human Rights Code expressly prohibits sexual discrimination in the workplace:
19 (1) No person who is responsible for an activity or undertaking to which this Code applies shall
(a) harass any person who is participating in the activity or undertaking; or
(b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.
19 (2) In this section "harassment" means
(a) a course of abusive or unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in subsection 9(2); or
(b) a series of objectionable and unwelcome sexual solicitations or advances; or
(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.
III
Judgments Below
1. The Adjudication Board
The complaints were heard by Adjudicator Henteleff. In a comprehensive decision of some 144 pages, rendered April 26, 1985 and reported at (1985), 6 C.H.R.R. D/2735, the adjudicator found that both Janzen and Govereau had been victims of sex discrimination. Much of the decision is devoted to preliminary matters which are not at issue in this Court. Adjudicator Henteleff conducted a thorough review of the evidence and concluded that the appellants had been subjected to persistent and abusive sexual harassment. He made the following finding in respect of Janzen, at p. D/2768:
Further, I find that the cumulative effect of the physical and mental harassment that she had been subjected to created an intolerable work environment for her. She was justified in coming to the conclusion, as she did following her conversation with Phillip immediately prior to her terminating her employment, that there was very little likelihood, if any, that the situation would be rectified. Accordingly, I further find that the cumulative effect of such acts of harassment, sexual as well as mental, and the attitude of the employer as above described amounted to constructive dismissal (see Cox and Cowell v. Jagbritte Inc. et al. (1982) 3 C.H.R.R. D/609 (Peter A. Cumming) at paras. 5593 and 5594).
and in respect of Govereau, at p. D/2768:
Based on all of the evidence I have no doubt in concluding that the individual respondent, Tommy, was guilty of sexual harassment of Tracy Govereau. The specific acts, of which she complained, consisted of unwanted sexual acts of a persistent and abusive nature. Her evidence, which I accept, also clearly established that Tommy knew or ought to have known that such acts were unwanted. It is clear from the evidence that Tommy made a variety of sexual advances including touching the complainant for sexual reasons, and that he persisted in this conduct even though it is obvious from her evidence that she forcibly rejected his actions. She impressed me as a truthful witness. Moreover, her evidence was corroborated in all essential respects by her co-worker, Carol Elizabeth Enns. Furthermore, I find that there was additional corroboration of Ms. Govereau's evidence as to Tommy by virtue of the similar acts committed by Tommy on the complainant, Dianna Janzen.
The question of whether sexual harassment could amount to sex discrimination prohibited by the Manitoba statute was not raised before the arbitrator by either counsel. As there was no dispute on the point, the adjudicator was content to cite six authorities for holding that sexual harassment is sex discrimination; Hufnagel v. Osama Enterprises Ltd. (1982), 3 C.H.R.R. D/922 (Man. Bd.); Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858 (Ont. Bd.); Olarte v. DeFilippis (1983), 4 C.H.R.R. D/1705 (Ont. Bd.); Giouvanoudis v. Golden Fleece Restaurant (1984), 5 C.H.R.R. D/1967 (Ont. Bd.); and Robichaud v. Brennan (1982), 3 C.H.R.R. D/977; Review Tribunal (1983), 4 C.H.R.R. D/1272, and on appeal to the Federal Court of Appeal which gave its judgment dated 18th day of February, 1985, [1984] 2 F.C. 799. The adjudicator accepted the definition of sexual harassment quoted by Professor Cumming in Giouvanoudis v. Golden Fleece Restaurant, supra, at para. 16819, as follows:
From a factual standpoint, sexual harassment can be considered to include:
Unwanted sexual attention of a persistent or abusive nature, made by a person who knows or ought reasonably to know that such attention is unwanted:
... or
Implied or expressed threat or reprisal, in the form either of actual reprisal or the denial of opportunity for refusal to comply with a sexually oriented required;
... or
Sexually oriented remarks and behaviour which may reasonably be perceived to create a negative psychological and emotional environment for work.
Adjudicator Henteleff concluded that Grammas' conduct violated s. 6(1) of the Human Rights Act.
The adjudicator made a number of findings of fact with respect to the position and responsibilities of Grammas at the restaurant and to Anastasiadis' knowledge of the existence of the harassment. He found: (1) that Grammas decided which of the waitresses went home early or stayed at work depending on the amount of business in the restaurant; (2) that in the absence of Anastasiadis, Grammas handled any problems with food quality or service; (3) that the staff had the clear and justifiable impression that Grammas was next in line in authority to Anastasiadis, and that he was in charge when Anastasiadis was absent; (4) that Grammas could clear cash from the till; and (5) that Grammas had advised both of the appellants that he could fire them and that even though this was not the case, his authority to terminate the appellants' employment was confirmed by Anastasiadis. Anastasiadis testified that he had told the waitresses Grammas had firing authority because (at p. D/2758) "the girls had to have somebody to be kind of afraid of or respect or whatever". The adjudicator also found that Anastasiadis was aware of the harassment of the appellants, that he failed to take any reasonable steps to ensure that the workplace was free from sexual harassment, and that he actively participated in the verbal harassment of the appellant Govereau.
The adjudicator also considered the liability of the corporate respondent, Platy Enterprises Ltd., for breaches of the Human Rights Act committed by Grammas. Adjudicator Henteleff reviewed earlier decisions of human rights tribunals, as well as the decision of the Federal Court of Appeal in Robichaud, before concluding that the corporate respondent was liable for the violations. The adjudicator appears to have found Platy Enterprises Ltd. liable both on the principle of vicarious liability and on the organic theory of corporate liability. He remarked (at p. D/2753):
The clear intent of Sec. 6(1), in respect of areas of discrimination arising therefrom, is not only to make the employer liable for any acts of sexual harassment directly committed by such employer, but also makes him responsible for any such acts committed by a person in authority during the course of his employment.
The adjudicator stated at p. D/2768:
After consideration of all of the evidence, it is my conclusion that Tommy was a person in such authority that his acts became those of his employer, Platy. The complainant Janzen was made aware of this to the extent that Tommy was in such a preferred position, that if she subjected herself to sexual harassment, she was to blame for it. Accordingly such harassment had become a condition of her continued employment since Phillip either couldn't or wouldn't do anything about it. (See McPherson et al v. Mary's Donuts and Doschoian (1982) 3 C.H.R.R. D/961 (Peter A. Cumming) and particularly at paras. 8549 to 8558, both inclusive.)
The adjudicator did not consider himself to be bound by the decision of the Federal Court of Appeal in Robichaud which restricted vicarious liability of a corporation to acts of sexual harassment committed by the corporation's directors or officers. Adjudicator Henteleff interpreted the majority judgment as dealing solely with the question of vicarious liability in a complaint against the Crown and as having no application to private employers. The decision of the Federal Court of Appeal on the issue of liability was later reversed on appeal to this Court (Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84).
Adjudicator Henteleff found Grammas and Platy Enterprises Ltd. jointly and severally liable to the complainants. He awarded Janzen the sum of $480 for lost wages and $3,500 in exemplary damages, and Govereau the sum of $3,000 for lost wages and $3,000 exemplary damages. In arriving at the quantum of exemplary damages, the adjudicator noted that both Janzen and Govereau had been subjected to physical and mental harassment of a severe nature and that the harassment had had a substantial psychological impact on both women. With respect to Janzen he said, at p. D/2771:
I further find that she was subject to physical and mental harassment which was of a most severe nature. I further find that the harassment was close to being constant throughout her period of employment. I find also that by virtue of her age (21) and her particular situation (including trying to be self-supporting for the first time), she was particularly vulnerable with the result that the cumulative effect of the harassment had a very substantial psychological impact upon her, and suffered damage in respect of feelings and self-respect.
and with respect to Govereau, also at p. D/2771:
I further find that she was subject to physical and mental harassment which although severe and frequent, was not of the same degree as that suffered by Ms. Janzen. I find that by virtue of her situation (including attending University and her particular need of this part-time job) that the cumulative effect of the harassment had a substantial psychological impact upon her and she suffered damages in respect of feelings and self-respect.
The award to Janzen was greater than the award to Govereau, as the harassment Janzen endured was more severe.
The decision concluded, at p. D/2772 by directing Platy Enterprises Ltd.:
Further and under the direction of the Manitoba Human Rights Commission, and within such time as the Commission determines, to establish and maintain in all of its restaurant premises such program as will reasonably assure such restaurant premises will remain free of sexual harassment.
2. The Manitoba Court of Queen's Bench
Platy Enterprises Ltd. appealed the decision of Adjudicator Henteleff. With the exception of the quantum of damages, Monnin J. upheld the adjudicator's decision: (1985), 38 Man. R. (2d) 20, 24 D.L.R. (4th) 31, [1986] 2 W.W.R. 273, 86 CLLC {PP} 16,009, 7 C.H.R.R. D/3309 (hereinafter cited to C.H.R.R.) Monnin J. began by noting that the question whether Janzen and Govereau had been sexually harassed was not before the court, counsel for the appellant having admitted that Grammas was guilty of sexual harassment. He then turned to consider whether sexual harassment is a form of sex discrimination prohibited by s. 6(1) of the Human Rights Act. Monnin J. rejected Platy Enterprises Ltd's argument that the term sex discrimination as used in the Manitoba statute was not intended to apply to activities of an individual directed against a particular individual, rather than against an entire identifiable group. Instead, he accepted the result and the reasoning of Adjudicator Shime in Bell v. Ladas (1980), 1 C.H.R.R. D/155 (Ont. Bd.), who held that sexual harassment did amount to discrimination on the basis of sex.
Monnin J. also rejected Platy Enterprises Ltd.'s argument that the amendments enacted by some provinces to prohibit specifically sexual harassment in their human rights legislation was to be construed as an indication that the term sex discrimination did not encompass sexual harassment.
Monnin J. next considered the liability of Platy Enterprises Ltd. for the actions of its employee, Grammas. He began by absolving Anastasiadis from any participation in the sexual harassment of Janzen and Govereau and from condoning Grammas' behaviour. In spite of his conclusion that Anastasiadis was not personally responsible for Grammas' conduct, Monnin J. continued to find Platy Enterprises Ltd. liable for sexual harassment (at p. D/3314):
. . . I have no hesitation in finding, as did the adjudicator, that whether or not, in reality, Grammas had any power over the staff of the restaurant, the staff was purposefully led to believe by Anastasiadis that he did. In point of fact, Grammas might well not have been a directing mind of respondents [sic] but the perception given to the employees is what must be a determining factor ...
By the admission of Anastasiadis, respondents [sic] have placed Grammas in a position of authority over the staff and therefore the complainants. By seemingly proffering this authority upon Grammas, respondents [sic] must be and are bound by his actions. Liability for Grammas' sexual harassment of complainants therefore extends to respondents [sic].
On the issue of damages, Monnin J. said, at pp. D/3314-15:
Section 28(2) of the Act empowers a board of adjudication to compensate a person who has been discriminated against for any wages or salary lost as a result of a contravention of the Act as well as ordering payments of a penalty or exemplary damages if a person who has been discriminated against has suffered damages in respect of feelings or self-respect.
In this particular case the board of adjudication found that complainant Janzen suffered a one month loss of income and awarded her $480.00 in lost wages. I have little difficulty in upholding this finding. As to complainant Govereau however, the board of adjudication found a loss of income of approximately 6 months and awarded damages in the amount of $3,000.00 for such loss. I am not satisfied that the evidence warrants this finding. There is little evidence of what if any attempts complainant Govereau made to secure other employment. There is evidence that she was embarrassed by her firing from Pharos and that this caused her some difficulties in seeking out employment. I do not question this, but an award of damages and not compensation for loss of wages is the proper remedy for this state of affairs. Even by giving complainant Govereau every benefit of the doubt, I cannot justify an award for loss of wages in excess of one month or $500.
I am now left with the issue of punitive or exemplary damages. This is a difficult concept with which to deal because the court must attempt to quantify feelings or self-respect. The concept itself is difficult to rationalize and even more so when it is of a nature with which courts do not normally deal with. Notwithstanding that human rights legislation is a new and specialized area of law, awards of damages in one area of law must maintain a certain balance with fines meted out in criminal or quasi criminal matters and damages awarded in general civil cases. Not to maintain this general balance will too easily bring into question the principle of equal justice for all. I fully realize and accept that the conduct of Grammas was demeaning and traumatic for both complainants. What must be realized however is that victims of criminal acts or persons wrongfully dismissed from their employment or injured by the conduct of others also have their feelings and self-respect attacked. This type of loss is not the sole preserve and domain of persons who have suffered discrimination. A loss based on discrimination cannot be assessed in a vacuum. Such a loss must be looked at in the context of damages in law as a whole.
Bearing those comments in mind, I find the complainant Janzen is entitled under s. 28(2)(c) of the Act to an award of $1,000.00 while complainant Govereau is entitled to an award of $1,500.00. I have awarded Govereau an amount greater than Janzen because the evidence has convinced me that her feelings and self-respect were dealt a more severe attack by the actions of Grammas than were the feelings and self-respect of Janzen.
Thus Monnin J. reduced the award for lost wages to Govereau from $3,000 to $500 because of insufficient evidence of her efforts to secure alternative employment and reduced the exemplary damage awards to Janzen and Govereau to $1,000 and $1,500 respectively.
3. The Manitoba Court of Appeal
Platy Enterprises Ltd. appealed the decision of Monnin J. and Janzen and Govereau cross-appealed on the quantum of damages. The Manitoba Court of Appeal (Matas, Huband and Twaddle JJ.A.) allowed the appeal: (1986), 43 Man. R. (2d) 293, 33 D.L.R. (4th) 32, [1987] 1 W.W.R. 385, 87 CLLC {PP} 17,014, 8 C.H.R.R. D/3831 (hereinafter cited to C.H.R.R.) Huband J.A. and Twaddle J.A. rendered comprehensive separate reasons which I will review at some length because, with the greatest respect, I do not agree with them. Both held that sexual harassment could not constitute discrimination on the basis of sex. Due to his untimely death, Matas J.A. did not participate in the reasons for judgment.
Huband J.A. began by expressing his amazement that sexual harassment had been equated with discrimination on the basis of sex, and that an employer could be held vicariously responsible for the harassing conduct of an employee. He stated (at p. D/3832):
I am amazed to think that sexual harassment has been equated with discrimination on the basis of sex. I think they are entirely different concepts. But adjudicators under human rights legislation, legal scholars and writers, and jurists have said that the one is included in the other.
Assuming sexual harassment to be a form of sexual discrimination, I am amazed to think that an employer could be held vicariously responsible for that form of discrimination on the part of an employee, or that a corporate employer could be found "personally responsible" for a sexually malevolent employee, except under the rarest of circumstances. Yet adjudicators, legal scholars, and judges have said otherwise.
Huband J.A. noted the line of cases in which both judges and adjudicators had found sexual harassment to be a form of sex discrimination but stated that these decisions were wrong.
Huband J.A. adopted two of the three meanings assigned to the word "discriminate" in The Shorter Oxford English Dictionary (3rd ed.): "1. To make or constitute a difference in or between; to differentiate . . .; 3. To make a distinction"; and concluded, "In this Act discrimination is a violation of the law. The word `discriminate' used in a pejorative sense, means an unjustified differentiation or distinction."
Sexual harassment, in the view of Huband J.A., embraced an entirely different concept, stating (at p. D/3834):
The word "harass" is given several definitions in The Shorter Oxford English Dictionary, the most pertinent for our purposes being to harry, or to trouble or vex by repeated attacks. Sexual harassment involves vexing or troubling a person with respect to sexual matters such as repeatedly touching or making suggestions, or threats.
Sexual harassment is not socially acceptable conduct. Depending on the nature of it, it might constitute a criminal offence or a civil wrong under the common law. But I cannot understand how it can be equated with sexual discrimination.
Although he recognized that sexual h