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Labour (Fed) - Sexual Harassment. Westjet v. T.H.
In Westjet v. T.H. (Fed CA, 2026) the Federal Court of Appeal allowed a labour JR, this seeking "to set aside the decision of the Canada Industrial Relations Board" where "the Board found that WestJet unjustly dismissed the respondent".
The court considered the law of sexual harassment, here in labour context:[18] Sexual harassment constitutes workplace misconduct that may warrant summary dismissal, depending on the severity of the conduct and other relevant circumstances. Employers in many Canadian jurisdictions have an obligation to develop and maintain workplace harassment and violence prevention policies, and employers may be liable for failure to take reasonable steps to prevent workplace harassment: see, for example, Canada Labour Code, R.S.C. 1985, c. L-2 [Canada Labour Code], para. 125 (z.16) and Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, s. 10. See also, Occupational Health and Safety Code, Alta. Reg. 191/2021, s. 390; The Saskatchewan Employment Act, S.S. 2013, c S‑15.1, s. 3-21.1; Workplace Safety and Health Regulation, Man Reg 217/2006, s. 10.1; Occupational Health and Safety Act, R.S.O. 1990, c. O.1, para. 32.0.1 (1); Loi sur les normes du travail, R.L.R.Q. c. N-1.1, s. 81.19; Occupational Health and Safety Act, S.N.B. 1983, c. O-0.2, para. 9(1)(b) and General Regulation - Occupational Health and Safety Act, N.B. Reg. 91-191, s. 374.4; Occupational Health and Safety Act, S.N.S. 1996, c. 7, subs. 13(4) and Workplace Health and Safety Regulations, N.S. Reg 52/2013, s. 27.2; Occupational Health and Safety Regulations, 2012 N.L.R. 5/12 s. 24.1; Occupational Health and Safety Act, R.S.P.E.I. 1988, c O-1.01, subs. 12(3) and Workplace Harassment Regulations, P.E.I. Reg. EC710/19, subs. 4(1). See also, Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 at p. 95; Canadian Pacific Railway Company v. Sauvé, 2024 FCA 171 [Sauvé] at paras. 22–24; Poliquin v. Devon Canada Corporation, 2009 ABCA 216 [Poliquin] at para. 46; Brazeau v. International Brotherhood of Electrical Workers, 2004 BCCA 645 at para. 31; Bannister v. General Motors of Canada Ltd. (1998), 1998 CanLII 7151 (ON CA), 40 O.R. (3d) 577(C.A.) at para. 20.
[19] Sexual harassment has been defined by the Supreme Court of Canada as being "“…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”": Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 SCR 1252 [Janzen] at p. 1284. Sexual harassment includes a wide range of misconduct, ranging from sexual assault to comments of a sexual nature that the maker knows or should know are unwelcome.
[20] According to Donald J.M. Brown, David M. Beatty & Adam J. Beatty, Canadian Labour Arbitration, 5th ed (Toronto: Thompson Reuters Canada, 2019) [Brown & Beatty] at § 7:33, "“[o]vert sexual advances, touching, peeping, viewing and/or distributing pornographic material in the workplace, as well as lewd, demeaning and other unwelcome comments or behaviour are all considered to be forms of sexual harassment”" (emphasis added). To similar effect, Arjun Aggarwal, in Sexual Harassment in the Workplace, 2nd ed. (Toronto: Butterworths, 1992) at p. 7, defines sexual harassment as follows:Sexual behaviour that a person finds personally offensive may be considered sexual harassment. Such behaviour may be subtle or obvious, verbal or non-verbal. Its scope may cover a wide range of behaviour that runs the gamut from patting women's bottoms when they walk down the hall; to pinching; to repeated, intrusive, insistent arms around the shoulder, couched in friendliness, but with a hidden agenda underneath; to an atmosphere contaminated with degrading comments, jokes, or innuendos, and/or reference to women's bodies, to male prowess, and questions about women's sex lives; to public displays of derogatory images of women; to the requirement that women dress in costumes that leave them the target of sexual comments and propositions from the general public; all the way to the explicit propositions that require women to engage in sexual relations or be terminated or lose deserved promotions.
(Emphasis added) [21] As noted by the Supreme Court of Canada in Janzen "“[s]exual harassment is a demeaning practice … that constitutes a profound affront to the dignity of the employees forced to endure it … [which] attacks the dignity and self-respect of the victim both as an employee and as a human being”" (at p. 1284).
[22] The Canada Labour Code applies to WestJet and its employees and defines harassment in subsection 122(1) as follows:Definitions
Définitions
122 (1) In this Part,
122 (1) Les définitions qui suivent s’appliquent à la présente partie.
…
[…]
harassment and violence means any action, conduct or comment, including of a sexual nature, that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment; (harcèlement et violence)
harcèlement et violence Tout acte, comportement ou propos, notamment de nature sexuelle, qui pourrait vraisemblablement offenser ou humilier un employé ou lui causer toute autre blessure ou maladie, physique ou psychologique, y compris tout acte, comportement ou propos réglementaire. (harassment and violence) [23] From the foregoing, it is apparent that the maker of offending comments need not have been motivated by the desire to engage in sexual relations with those to whom the comments are made for the comments to constitute sexual harassment. Nor does a determination of sexual harassment require that the maker of a series of offensive comments appreciate they are inappropriate or that the person to whom they are directed object to them, provided that, when viewed objectively, the impugned comments are of a sexual nature and are offensive: see, for example, Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388 at paras. 36, 43–44; Laurie and Bell Media, Re (2020), 2020 CarswellNat 5204 (Can.Adjud. (CLC Part III)) at paras. 197–200.
[24] Indeed, lewd comments and demeaning comments based on gender or sexual orientation have been found to constitute sexual harassment in the absence of any sexual intent on the part of the maker: see, for example: Sterling Crane and IUOE, Local 955 (Cormier), Re, 2024 CanLII 46844 (Alta. Arb.) at para. 140; Alberta Justice and Solicitor General and AUPE (869395), Re, 2023 CarswellAlta 160, [2023] A.W.L.D. 1215 at para. 79; Brown & Beatty at § 7:33. Likewise, distribution of pornography in the workplace, in and of itself, has been held to constitute sexual harassment: Poliquin at paras. 55–60; Brown & Beatty at § 7:33. . Canadian Pacific Railway Company v. Sauvé
In Canadian Pacific Railway Company v. Sauvé (Fed CA, 2024) the Federal Court of Appeal allowed an employer's appeal from a employee's JR, here of "a decision of a labour adjudicator that allowed in part the respondent’s unjust dismissal complaint under section 240 of the Canada Labour Code".
These extracts involve the CLC's sexual harassment provisions:[19] In disciplinary matters, the role of the adjudicator is to determine whether the misconduct alleged against the employee has been established by the employer, who bears the burden of proof. If it has, the adjudicator assesses whether dismissal is the appropriate measure in the circumstances (McKinley v. BC Tel, 2001 SCC 38 at para. 49; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 at para. 49).
[20] In the case at hand, the appellant alleges that the respondent sexually harassed a subordinate, thereby violating the Harassment Policy.
[21] At the time of the events in question, section 247.1 of the Code defined sexual harassment as follows:247.1 In this Division, sexual harassment means any conduct, comment, gesture or contact of a sexual nature:" "
247.1 Pour l’application de la présente section, harcèlement sexuel s’entend de tout comportement, propos, geste ou contact qui, sur le plan sexuel :" "
(a) that is likely to cause offence or humiliation to any employee; or" "
a) soit est de nature à offenser ou humilier un employé;
(b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion." "
b) soit peut, pour des motifs raisonnables, être interprété par celui-ci comme subordonnant son emploi ou une possibilité de formation ou d’avancement à des conditions à caractère sexuel. [22] In addition, the Code provided for an obligation on the employer to make every reasonable effort to ensure that no employee is subjected to sexual harassment (section 247.3 of the Code). Under section 65 of the CHRA, the employer may be held jointly and severally liable for acts committed by an employee (including an officer) in the course of their employment that constitute sexual harassment under subsection 14(2) of the CHRA. Sections 247.1 et seq. of the Code have since been repealed and replaced by new provisions in Part II of the Code and the Work Place Harassment and Violence Prevention Regulations, SOR/2020-130, the application of which is not at issue here.
[23] In accordance with the obligation to provide its employees with employment free of sexual harassment (section 247.2 of the Code), the appellant adopted the Harassment Policy, which provided, among other things, that acts of harassment, sexual or other, were unacceptable and such conduct was not acceptable at any level of the Company (Appeal Book at 1635). The Harassment Policy defined sexual harassment as follows:Sexual harassment may be defined as any unsolicited and unwelcome conduct, comment, gesture or contact of a sexual nature that:"
Par harcèlement sexuel, on entend tout comportement, commentaire, geste ou contact de nature sexuelle, non sollicité ou importun, susceptible :" "
(a) is likely to cause offence or humiliation; or
a) d’offenser ou d’humilier un employé;" "
(b) might, on reasonable grounds, be perceived as placing a condition of a sexual nature on conditions of employment, including any opportunity for training or promotion.
b) de donner des motifs raisonnables de croire qu’une condition de nature sexuelle est liée à un emploi ou à une possibilité de formation ou de promotion."
Appeal Book at 1637
Appeal Book at 1649" [24] The Harassment Policy specified that sexual harassment could occur on or off company property, and could include but was not limited to suggestive remarks, jokes, innuendos or taunting in a sexual context, unwarranted touching, leering, and compromising invitations (Appeal Book at 1638). The principles set out in the Harassment Policy were reiterated in the appellant’s Code of Ethics.
[25] In addition to the definition set out in the Code, the Supreme Court of Canada, after reviewing several definitions adopted by courts, authors, and legislative authorities, stated the following in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, on the concept of sexual harassment in the workplace:Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as 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. It is, as Adjudicator Shime observed in Bell v. Ladas... and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee 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.
(Janzen at 1284) [26] Although that case concerned complaints filed with the Manitoba Human Rights Commission for sex discrimination, this definition has been taken up in the context of labour and employment law (Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ON CA) at para. 53; Bannister v. General Motors of Canada Ltd., [1998] O.J. No. 3402 at para. 1 (Q.L.), 1998 CanLII 7151 (ON CA); van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73 (CanLII) at para. 165; Fleming v. Ricoh Canada Inc., 2003 CanLII 2435 (ON SC) at para. 8; Leach v. Canadian Blood Services, 2001 ABQB 54 (CanLII) at para. 86; Syndicat des Travailleuses et Travailleurs de PJC Entrepôt c. Groupe Jean Coutu (P.J.C.) inc., 2016 CanLII 50736 (QC SAT) at para. 150; Marois v. Sleeman Brewing & Malting Co. Ltd, 2004 QCCRT 580 (CanLII) at para. 83).
[27] This definition makes it clear that sexual harassment in the workplace has three elements: (a) sexual conduct (b) that is unwelcome ("“non sollicitée”") and (c) that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment (Janzen at 1284).
[28] In assessing whether the impugned conduct was unwelcome (undesired, unsolicited or untolerated), the power imbalance between the victim and the person whose conduct is at issue is a relevant factor (Payne v. Bank of Montreal, 2013 FCA 33 at paras. 64, 71; Simpson at para. 64; Dupuis v. British Columbia (Ministry of Forests), 1993 CanLII 16472 (BC HRT) at paras. 61, 62).
[29] Although romantic and sexual relationships in the workplace remain permitted, even between individuals in authority and subordinates (Payne at para. 67; Dupuis at para. 38), evidence of consent and of the unwelcome nature of the conduct poses particular challenges when sexual harassment is alleged in an apparently consensual relationship (Simpson at paras. 62, 64; Mallioux v. N. Yanke Transfer Ltd., [1999] C.L.A.D. No. 40 at para. 74 (Q.L.), 1999 CanLII 19559 (CA LA); Dupuis at paras. 39–44).
[30] The issue of sexual harassment in the workplace is complex and, in many cases, depends on the credibility of the testimony, given the general lack of witnesses. The criteria for assessing the credibility of testimony include the likelihood of a version, a witness’s interest in testifying, the lack of contradiction on essential elements, and the corroboration of facts (Leach at para. 70; Mornard et Union des artistes, 2005 CanLII 92493 (QC CRT) at para. 90; Marois at paras. 88, 89).
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