Present: Dickson C.J. and McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux‑Dubé JJ.
on appeal from the federal court of appeal
Civil rights ‑‑ Infringement ‑‑ Liability ‑‑ Female employee sexually harassed by male supervisor ‑‑ Whether or not employer liable for supervisor's actions ‑‑ Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 2, 3, 7(a), (b), 41(2), (3).
Mrs. Bonnie Robichaud filed a complaint with the Canadian Human Rights Commission dated January 26, 1980 that she had been sexually harassed, discriminated against and intimidated by her employer, the Department of National Defence, and that Dennis Brennan, her supervisor, was the person who had sexually harassed her. The Human Rights Tribunal appointed to inquire into Robichaud's complaint found that a number of sexual encounters had taken place between her and Brennan, but dismissed the complaint against Brennan and against the employer. A Review Tribunal found, on appeal, that Brennan had sexually harassed Robichaud and that the Department of National Defence was strictly liable for the actions of its supervisory personnel. Assessment of damages, however, was postponed until further argument had been heard. The Federal Court of Appeal dismissed Brennan's application for judicial review but allowed that of The Queen. The Court set aside the decision of the Review Tribunal, and referred the matter back to it on the basis that Robichaud's complaint against the Crown was not sustainable. The latter decision was appealed to this Court. At issue here is whether or not an employer is responsible for the unauthorized discriminatory acts of its employees in the course of their employment under the Canadian Human Rights Act.
Held: The appeal should be allowed.
Per Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and L'Heureux‑Dubé JJ.: The Canadian Human Rights Act contemplates the imposition of liability on employers for all acts of their employees "in the course of employment". This expression must, in view of the purposes of the Act, be interpreted as meaning job‑related. No label need be attached to this type of liability; it is purely statutory, though it serves a purpose somewhat similar to that of vicarious liability in tort by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions.
Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti‑social behaviour, the motives or intentions of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence. Theories of employer liability developed in the context of criminal or quasi‑criminal conduct are therefore completely beside the point as being fault oriented. The liability of an employer, too, ought not be based on vicarious liability, as developed under the law of tort, which was confined to activities done within the confines of a person's job, but rather in terms of the purpose of the Act. The remedial objectives of the Act would be stultified if its remedies, especially those set out in ss. 41 and 42, were not available as against the employer. The Act is concerned with the effects of discrimination rather than its causes (or motivations): only an employer can remedy undesirable effects and only an employer can provide the most important remedy‑‑a healthy work environment. The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, supports making the Act's carefully crafted remedies effective. If the Act is to achieve its purpose, the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.
Per Le Dain J.: The appeal should be allowed for the reasons of La Forest J. The Act contemplates in ss. 4 and 41(2) that relief will be available against the person found to be engaging or to have engaged in a discriminatory practice. It is an implication of the word "indirectly" in s. 7 and the nature of the relief available under s. 41(2) that a discriminatory practice by the employee is to be considered a discriminatory practice by the employer as well, whether or not authorized or intended by the latter.
Cases Cited
Applied: Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; referred to: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986); Re Nelson and Byron Price & Associates Ltd. (1981), 122 D.L.R. (3d) 340.
Statutes and Regulations Cited
Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 2, 3, 4, 7(a), (b), 39, 41(2), (3), 42, 63(1).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPEAL from a judgment of the Federal Court of Appeal, [1984] 2 F.C. 799, (1985), 57 N.R. 116, setting aside a judgment of the Review Tribunal which had allowed an appeal from a judgment of a Human Rights Tribunal appointed under the Canadian Human Rights Act, and referring the matter back to that Tribunal. Appeal allowed.
Michael L. Phelan and K. Scott McLean, for the appellant Bonnie Robichaud.
Russell Juriansz and James Hendry, for the appellant the Canadian Human Rights Commission.
Graham Garton, Q.C., for the respondent.
The judgment of Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and L'Heureux‑ Dubé JJ. was delivered by
1. La Forest J.‑‑The issue in this case is whether an employer is responsible for the unauthorized discriminatory acts of its employees in the course of their employment under the Canadian Human Rights Act, S.C. 1976‑77, c. 33, as amended, as it stood before the enactment in 1983 of ss. 48(5) and (6) of the Act which now deal specifically with the issue; see S.C. 1980‑81‑82‑83, c. 143, s. 23.
Background
2. The facts, so far as necessary for the disposition of this appeal, may be briefly stated. Mrs. Bonnie Robichaud filed a complaint with the Canadian Human Rights Commission dated January 26, 1980 that she had been sexually harassed, discriminated against and intimidated by her employer, the Department of National Defence, and that Dennis Brennan, her supervisor, was the person who had sexually harassed her.
3. Robichaud began employment with the Department of National Defence at the Air Defence Command base in North Bay, Ontario, as a cleaner in 1977. She was later promoted to the position of lead hand effective November 20, 1978, subject to a six‑month probationary period lasting until May 20, 1979. Throughout the period, Brennan was Foreman of the Cleaning Department on the Base and had full responsibility for the cleaning operation. He supervised two Area Foremen who in turn supervised the lead hands including Robichaud. Robichaud's Area Foreman assigned her geographic workplace, workload and the cleaning staff she supervised. Brennan had the principal input into the employer's decision with respect to the satisfactory completion of Robichaud's probation period. Brennan was supervised by the Base Administrative Officer and ultimately the Base Commanding Officer.
4. A Human Rights Tribunal was appointed under s. 39 of the Canadian Human Rights Act to inquire into Robichaud's complaint. The Tribunal found that a number of encounters of a sexual nature had occurred between her and Brennan, but dismissed the complaint against Brennan and against the employer. However, an appeal to a Review Tribunal was allowed. The Review Tribunal found that Brennan had sexually harassed Robichaud and that the Department of National Defence was strictly liable for the actions of its supervisory personnel. However, it postponed the assessment of damages until further argument was heard.
5. Both Brennan and The Queen, as represented by the Treasury Board (for the Department of National Defence), filed applications under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, requesting the Federal Court of Appeal to review and set aside the decision of the Review Tribunal. Both applications were heard at the same time. Brennan's application was dismissed, but that of The Queen was allowed, MacGuigan J. dissenting. The court set aside the decision of the Review Tribunal, and referred the matter back to it on the basis that Robichaud's complaint against the Crown was not sustainable. The latter decision was appealed to this Court.
Preliminary Observations
6. As is well‑known, the Canadian Human Rights Act prohibits discriminatory practices in, among other activities, employment on a number of grounds, including sex (s. 3). Specifically, the present case is alleged to fall under s. 7 of the Act which reads as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination. [Emphasis added.]
In this Court, it was not questioned that sexual harassment in the course of employment constituted discrimination on the ground of sex or that the actions of Brennan amounted to sexual harassment. The sole question for this Court, therefore, is whether such actions can be attributed to the employer, here the Crown, to which the Act applies by virtue of s. 63(1).
Analysis
7. In the Court of Appeal and in the arguments before this Court, considerable attention was given to various theories supporting the liability of an employer for the acts of its employees, such as vicarious liability in tort and strict liability in the quasi‑criminal context. As Thurlow C.J. notes, however, the place to start is necessarily the Act, the words of which, like those of other statutes, must be read in light of its nature and purpose.
8. The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by discriminatory practices based on certain prohibited grounds of discrimination, including discrimination on the ground of sex. As McIntyre J., speaking for this Court, recently explained in Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, the Act must be so interpreted as to advance the broad policy considerations underlying it. That task should not be approached in a niggardly fashion but in a manner befitting the special nature of the legislation, which he described as "not quite constitutional"; see also Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, per Lamer J., at pp. 157‑58. By this expression, it is not suggested, of course, that the Act is somehow entrenched but rather that it incorporates certain basic goals of our society. More recently still, Dickson C.J. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) (the Action Travail des Femmes case), [1987] 1 S.C.R. 1114, emphasized that the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects.
9. It is worth repeating that by its very words, the Act (s. 2) seeks "to give effect" to the principle of equal opportunity for individuals by eradicating invidious discrimination. It is not primarily aimed at punishing those who discriminate. McIntyre J. puts the same thought in these words in O'Malley at p. 547:
The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant.
10. Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti‑social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence. O'Malley makes it clear that "an intention to discriminate is not a necessary element of the discrimination generally forbidden in Canadian human rights legislation" (at p. 547). This legislation creates what are "essentially civil remedies" (p. 549). McIntyre J. there explains that to require intention would make the Act unworkable. He has this to say at p. 549:
To take the narrower view and hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create, as in Griggs v. Duke Power Co., 401 U.S. 424 (1971), injustice and discrimination by the equal treatment of those who are unequal (Dennis v. United States, 339 U.S. 162 (1950), at p. 184).
The foregoing remarks were made in the context of a provincial human rights code, but they are equally applicable to the federal Act; see Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, at p. 586, per McIntyre J. In the latter case, similar views to those of McIntyre J. in O'Malley were expressed, albeit in dissent, by Dickson C.J., at pp. 569 and 571. The same approach is again inherent in the Chief Justice's judgment in Canadian National Railway Co. (Action Travail des Femmes), supra.
11. The interpretative principles I have set forth seem to me to be largely dispositive of this case. To begin with, they dispose of the argument that one should have reference to theories of employer liability developed in the context of criminal or quasi‑criminal conduct. These are completely beside the point as being fault oriented, for, as we saw, the central purpose of a human rights Act is remedial‑‑to eradicate anti‑social conditions without regard to the motives or intention of those who cause them.
12. The last observation also goes some way towards disposing of the theory that the liability of an employer ought to be based on vicarious liability developed under the law of tort. On this issue, counsel for the Crown placed considerable reliance on the requirement in s. 7(b) that the act complained of must have been done in the course of employment. It is clear, however, that that limitation, as developed under the doctrine of vicarious liability in tort cannot meaningfully be applied to the present statutory scheme. For in torts what is aimed at are activities somehow done within the confines of the job a person is engaged to do, not something, like sexual harassment, that is not really referable to what he or she was employed to do. The purpose of the legislation is to remove certain undesirable conditions, in this context in the workplace, and it would seem odd if under s. 7(a) an employer would be liable for sexual harassment engaged in by an employee in the course of hiring a person, but not be liable when that employee does so in the course of supervising another employee, particularly an employee on probation. It would appear more sensible and more consonant with the purpose of the Act to interpret the phrase "in the course of employment" as meaning work‑ or job‑related, especially when that phrase is prefaced by the words "directly or indirectly". Interestingly, in adding "physical handicap" as a prohibited ground of discrimination in the workplace (s. 3), the phrase used is "in matters related to employment".
13. Any doubt that might exist on the point is completely removed by the nature of the remedies provided to effect the principles and policies set forth in the Act. This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected.
14. What then are the remedies provided by the Act? Section 4, after providing that a discriminatory practice may be the subject of a complaint under the Act, goes on to say that anyone who is found to be engaging or to have engaged in such a practice may be made subject to an order under ss. 41 and 42. Subsections 41(2) and (3) are particularly relevant; they read as follows:
41. ...
(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in such order any of the following terms that it considers appropriate:
(a) that such person cease such discriminatory practice and, in consultation with the Commission on the general purposes thereof, take measures, including adoption of a special program, plan or arrangement referred to in subsection 15(1), to prevent the same or a similar practice occurring in the future;
(b) that such person make available to the victim of the discriminatory practice on the first reasonable occasion such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
(c) that such person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and any expenses incurred by the victim as a result of the discriminatory practice; and
(d) that such person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and any expenses incurred by the victim as a result of the discriminatory practice.
(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in respect of feelings or self‑respect as a result of the practice,
the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine. [Emphasis added.]
15. It is clear to me that the remedial objectives of the Act would be stultified if the above remedies were not available as against the employer. As MacGuigan J. observed in the Court of Appeal, [1984] 2 F.C. 799, at p. 845:
The broad remedies provided by section 41, the general necessity for effective follow‑up, including the cessation of the discriminatory practice, imply a similar responsibility on the part of the employer. That is most clearly the case with respect to the requirement in paragraph 41(2)(a) that the person against whom an order is made "take measures, including the adoption of a special program, plan or arrangement ... to prevent the same or a similar practice occurring in the future". Only an employer could fulfil such a mandate.
MacGuigan J.'s comment equally applies to an order to make available the rights denied to the victims under para. (b). Who but the employer could order reinstatement? This is true as well of para. (c) which provides for compensation for lost wages and expenses. Indeed, if the Act is concerned with the effects of discrimination rather than its causes (or motivations), it must be admitted that only an employer can remedy undesirable effects; only an employer can provide the most important remedy‑‑a healthy work environment. The legislative emphasis on prevention and elimination of undesirable conditions, rather than on fault, moral responsibility and punishment, argues for making the Act's carefully crafted remedies effective. It indicates that the intention of the employer is irrelevant, at least for purposes of s. 41(2). Indeed, it is significant that s. 41(3) provides for additional remedies in circumstances where the discrimination was reckless or wilful (i.e., intentional). In short, I have no doubt that if the Act is to achieve its purpose, the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.
16. Not only would the remedial objectives of the Act be stultified if a narrower scheme of liability were fashioned; the educational objectives it embodies would concomitantly be vitiated. If, as was suggested by the Court of Appeal, society must wait for a Minister (who is already subject to public scrutiny) to discriminate before the Act comes into operation, how effective can the educational function of the Act be? More importantly, the interpretation I have proposed makes education begin in the workplace, in the micro‑ democracy of the work environment, rather than in society at large.
17. Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees "in the course of employment", interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions. I agree with the following remarks of Marshall J., who was joined by Brennan, Blackmun and Stevens JJ., in his concurring opinion in the United States Supreme Court decision in Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986), at pp. 2410‑11 concerning sexual discrimination by supervisory personnel:
An employer can act only through individual supervisors and employees; discrimination is rarely carried out pursuant to a formal vote of a corporation's board of directors. Although an employer may sometimes adopt company‑wide discriminatory policies violative of Title VII, acts that may constitute Title VII violations are generally effected through the actions of individuals, and often an individual may take such a step even in defiance of company policy. Nonetheless, Title VII remedies, such as reinstatement and backpay, generally run against the employer as an entity.
...
A supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day‑to‑day supervision of the work environment and with ensuring a safe, productive, workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases it is the authority vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates.
18. In the light of these conclusions, it is unnecessary for me to examine the allegations that the Crown would, in any event, be directly liable for management's failure to adequately investigate Robichaud's complaints, thereby perpetuating the poisoned work environment. At all events, this, too, involves the acts of employees.
19. I should perhaps add that while the conduct of an employer is theoretically irrelevant to the imposition of liability in a case like this, it may nonetheless have important practical implications for the employer. Its conduct may preclude or render redundant many of the contemplated remedies. For example, an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such steps. These matters, however, go to remedial consequences, not liability.
20. Finally, it was argued that the Act, as it existed when the incidents complained of occurred, should be interpreted so as to conform to s. 48(5) and (6) enacted in 1983. These expressly impose liability upon an organization for the conduct of its employees, subject to a defence of due diligence on its part. I do not see the relevance of these provisions to the pre‑existing situation. They were obviously enacted to redress the prevalent approach of the courts (see, for example, Re Nelson and Byron Price & Associates Ltd. (1981), 122 D.L.R. (3d) 340 (B.C.C.A.)) In subsequently taking legislative action to correct this approach, Parliament was free to adjust liability in any way it wished, whether by imposing a greater or lesser burden on an employer than would have been the case before the amendments. Precisely what balance was achieved by these new provisions, I need not consider. They do not operate retrospectively and all we are concerned with here is the law as it existed when the activities complained against took place.
21. Finally, we were advised that a settlement has been reached with Mrs. Robichaud, but this may not provide a full corrective to the problem identified.
Disposition
22. For these reasons, I would allow the appeal, reverse the decision of the Federal Court of Appeal and restore the decision of the Review Tribunal.
The following are the reasons delivered by
23. Le Dain J.‑‑I agree that the appeal should be allowed for the reasons given by Justice La Forest. As held by the majority in the Federal Court of Appeal, the Act contemplates in ss. 4 and 41(2) that relief will be available against the person found to be engaging or to have engaged in a discriminatory practice, but I think it is an implication of the word "indirectly" in s. 7 and the nature of the relief available under s. 41(2) that a discriminatory practice by an employee is to be considered to be a discriminatory practice by the employer as well, whether or not authorized or intended by the latter.
Appeal allowed.
Solicitors for the appellant Bonnie Robichaud: Osler, Hoskin & Harcourt, Ottawa.
Solicitors for the appellant the Canadian Human Rights Commission: Blake, Cassels & Graydon, Toronto.
Solicitor for the respondent: Frank Iacobucci, Ottawa.
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