T-1200-98
Canadian Human Rights Commission (Applicant)
v.
Canadian Armed Forces and Kimberley Franke (Respondents)
Indexed as: Canada (Human Rights Commission)v. Canada (Armed Forces) (T.D.)
Trial Division, Tremblay-Lamer J."Vancouver, March 11; Toronto, April 28, 1999.
Human Rights — Judicial review of CHRT's denial of complaint employer, Canadian Armed Forces, engaged in discriminatory practice contrary to CHRA, ss. 7, 14 — Senior N.C.O. allegedly repeatedly inquiring about complainant's dating habits, making suggestive gestures — C.O. referring to her as —sexatary—, —Biker Mama— — Application of legal test for sexual harassment to impugned conduct mixed question of fact, law — Appropriate standard of review —reasonableness— — Sexual harassment unwelcome conduct of sexual nature detrimental to work environment — Whether conduct unwelcome determined by complainant's reaction, whether express or by behaviour, at time incident occurred — Complainant must establish signalled harasser conduct unwelcome — Whether conduct —sexual in nature— determined on case-by-case basis, based on standard of reasonable person in circumstances bearing in mind stereotypical acceptable social conduct, considering context in which impugned conduct necessary to determine whether conduct detrimental to work environment — Harassment requiring element of persistence, repetition — Less severe conduct requiring more persistence — Fairness requiring employee, whenever possible, to notify employer of alleged offensive conduct — Tribunal applied proper test for sexual harassment: looked at comments to determine whether unwelcome at time made, and whether, being sexual in nature, serious enough to constitute sexual harassment — Evidence that complainant actively participated in collegial atmosphere at workplace including telling of sexual jokes — Where bulk of evidence supporting Tribunal's finding, and task of weighing evidence lying with Tribunal, Court will not find Tribunal ignored relevant evidence or that finding patently unreasonable — Complainant not subjected to adverse treatment based on sex.
Armed forces — Judicial review of CHRT decision denying complaint CAF engaged in discriminatory practice contrary to CHRA — Allegation Corporal subjected to sexual harrassment by N.C.O. (Unit Disciplinarian) (questioning dating habits, suggestive gestures, showing postcard of female nude), C.O. (terming Corporal a —sexatary—) — Internal grievances turned down — Allegation bringing grievances punished by differential treatment — Given written reprimand for insubordination following visit by Female Advisory Committee who found complainant wearing non-regulation shoes — Evidence complainant willing participant in collegial atmosphere at workplace where sexual, racist jokes told — Tribunal decision reasonable.
This was an application for judicial review of the Canadian Human Rights Tribunal's denial of the complainant's complaint that her employer, the Canadian Armed Forces (CAF), had engaged in a discriminatory practice, contrary to the Canadian Human Rights Act, sections 7 and 14. The complainant alleged that the pattern of conduct of her superior officers created a hostile work environment. She alleged that a non-commissioned officer senior in rank to her and who held the position of Unit Disciplinarian repeatedly inquired about her dating habits, made suggestive gestures toward her and showed her a postcard depicting a bare-breasted woman. She complained that the commanding officer referred to her in derogatory terms (i.e. "sexatary", "Biker Mama"), and made comments regarding her ability to afford a home on a Corporal's salary. The complainant filed internal grievances, which were unsuccessful at all levels. She asserted that these grievances resulted in the CAF treating her in a differential manner. These events culminated in the "shoe incident" in which two senior female officers, who were visiting all units on the Base with respect to matters of dress and deportment, arrived unannounced at the complainant's office. The complainant was reprimanded for not wearing regulation shoes, and in response was insubordinate, for which she received a recorded warning. The complainant averred that the recorded warning was in direct response to the grievances that she had filed. When further grievances were unsuccessful, she filed a complaint with the CHRC. The majority of the Tribunal found that the complainant had not been subjected to sexual harassment, and had not suffered differential treatment based on her sex.
The issues were: (1) whether the Tribunal applied the correct test for sexual harassment; (2) whether the Tribunal disregarded material evidence in concluding that the evidence did not support the complainant's allegations; and (3) whether the Tribunal erred in law by assessing the differential treatment complaint separately from the sexual harassment complaint.
Held, the application should be dismissed.
(1) The task of applying the correct legal test for sexual harassment to the impugned conduct in order to decide whether that which occurred constituted sexual harassment was a question of mixed fact and law. The appropriate standard of review was reasonableness. Provided that the Tribunal's decision was supported by reasons which can be justified by the evidence, the Court should not intervene.
The test for sexual harassment is unwelcome conduct of a sexual nature that is detrimental to the work environment. To determine whether conduct is unwelcome, the Tribunal will look at the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct, the complaint will fail. This determination largely turns on questions of credibility and may present real problems of evidence for the trier of fact. The proper inquiry will not require a verbal "no" in all cases. Nonetheless, the complainant must establish that she had in some way, for instance by body language or by repetitive failure to respond to suggestive comments, signalled to the harasser that his conduct was unwelcome. The appropriate standard against which to assess the conduct will be that of the reasonable person in the circumstances.
The Tribunal's determination of whether conduct falls within the ambit of "sexual in nature" should be conducted on a case-by-case basis, based on the test of the reasonable person in the circumstances. This objective standard should not be applied in a vacuum. The trier of fact should be sensitive to stereotyped norms of what constitutes acceptable social conduct and consider the context in which the impugned conduct took place, when determining how the reasonable person would react in similar circumstances.
If the trier of fact is satisfied that the conduct was unwelcome and sexual in nature, he or she should proceed to an assessment of the persistence and gravity of the conduct to determine whether the conduct was detrimental to the work environment. The simple fact that the infringement is one of harassment requires an element of persistence or repetition, although in certain circumstances a single incident may be enough to create a hostile work environment. The more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated. Again, the reasonable person standard applies to an assessment of whether the conduct is sufficiently severe or persistent to create a poisoned workplace.
Fairness requires that the employee, whenever possible, notify the employer of the alleged offensive conduct. In order for sexual harassment policies to work, the employee should inform the employer of any problems, in order to give him or her the opportunity to remedy them. This requirement will exist if the employer has a personnel department and a comprehensive and effective sexual harassment policy, including appropriate redress mechanisms, which are already in place. The goal of a sexual harassment policy is to achieve a healthy workplace, and therefore the sooner action is taken to eliminate harassing conduct, the less likely it is that any such conduct will become detrimental to the work environment.
The Tribunal applied the proper test for sexual harassment: it looked at the comments to determine whether they were unwelcome at the time they were made and whether, being sexual in nature, they were serious enough to constitute sexual harassment. There was evidence supporting the Tribunal's findings that the complainant did not view the conduct of the N.C.O. or of the commanding officer as harassment at the time it occurred. The evidence further showed that there was a fairly collegial atmosphere at the workplace, including sexual and racist jokes and comments. There was testimony that the complainant "always took part in whatever was going on in the canteen" where she spoke of her "Frenchman boyfriend", "sex on the beach" and remarked that there's not enough men around here" and said "Geez, I wish I could get laid". The Tribunal's determination that the alleged incidents were not sufficient to constitute sexual harassment was reasonable and satisfied the standard of review. When applying the standard of reasonableness simpliciter , if a tribunal's conclusion is reasonable and based upon the evidence, a reviewing court should not intervene.
(2) The Commission submitted that the Tribunal's failure to expressly consider the testimony of one of the witnesses which suggested that the complainant was offended at the time by some of the comments was a reviewable error. But, as the bulk of evidence supported the Tribunal's finding, and it was the Tribunal's task to weigh the evidence, the Court was not prepared to find that the Tribunal ignored relevant evidence or that its finding was patently unreasonable.
(3) There was sufficient evidence to support a finding that the complainant was not subjected to any adverse treatment based on her sex. The "shoe incident" occurred a month after the alleged "sexual innuendos" had ended. There was no evidence that the recorded warning flowed from the internal grievances regarding the alleged incidents of sexual harassment.
| statutes and regulations judicially considered |
| Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 14(1). |
| Competition Act, R.S.C., 1985, c. C-34. |
| cases judicially considered |
| applied: |
| Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 50 Admin. L.R. (2d) 199; 71 C.P.R. (3d) 417; 209 N.R. 20; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; (1989), 59 D.L.R. (4th) 352; [1989] 4 W.W.R. 39; 58 Man. R. (2d) 1; 25 C.C.E.L. 1; 10 C.H.R.R. D/6205; 89 CLLC 17,011; 47 C.R.R. 274. |
| referred to: |
| Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; (1993), 102 D.L.R. (4th) 665; 79 B.C.L.R. (2d) 273; 13 Admin. L.R. (2d) 141; 26 B.C.A.C. 241; 18 C.H.R.R. D/310; 152 N.R. 99; 44 W.A.C. 241; Lobzun v. Dover Arms Neighbourhood Public House Ltd. (1996), 25 C.H.R.R. D/284; MacBain v. Canada (Human Rights Commission) (1984), 5 C.H.R.R. D/2285; Ottawa Board of Education and Ottawa Board of Education Employees' Union, Re (1989), 5 L.A.C. (4th) 171. |
| authors cited |
| Aggarwal, Arjun P. Sexual Harassment in the Workplace, 2nd ed. Toronto: Butterworths, 1992. |
| Drapeau, Maurice. Le harcèlement sexuel au travail. Cowansville (Qué.): Éditions Yvon Blais, 1991. |
| Gallivan, Kathleen. "Sexual Harassment After Janzen v. Platy : The Transformative Possibilities" (1991), 49 U.T. Fac. L. Rev. 27. |
APPLICATION for judicial review of CHRT's denial of complaint that the pattern of conduct of superior officers at a military base constituted sexual harassment and created a hostile work environment such that the employer, the Canadian Armed Forces, was engaging in a discriminatory practice, contrary to the Canadian Human Rights Act, sections 7 and 14. (Franke v. Canada (Canadian Armed Forces), [1998] C.H.R.D. No. 3 (QL)). Application dismissed.
| appearances: |
| Margaret R. Jamieson for applicant. |
| Darlene Patrick for respondents. |
| solicitors of record: |
| Canadian Human Rights Commission for applicant. |
| Deputy Attorney General of Canada for respondents. |
The following are the reasons for order rendered in English by
Tremblay-Lamer J.: This is an application for judicial review of a decision of the Canadian Human Rights Tribunal [[1998] C.H.R.D. No. 3 (QL)] (the Tribunal) to deny Kimberley Franke's (Ms. Franke or the complainant) claim that the Canadian Armed Forces (the CAF), her employer, was engaging in a discriminatory practice, contrary to section 7 and subsection 14(1) of the Canadian Human Rights Act1 (the CHRA).
THE FACTS
Ms. Franke joined the CAF on December 10, 1981 at 20 years of age. She was voluntarily released from service on January 10, 1993. At the time of her release she had attained the rank of Corporal. Prior to February 1991, Ms. Franke's military record was unblemished.
In February 1991, Ms. Franke was posted to the Base Transportation Office (BTnO) at CFB Comox. While at BTnO, Ms. Franke's supervisor was Lieutenant (Lt) Karen Vedova who in turn reported to the Commanding Officer (CO) Major Couture. Major Couture reported to Lieutenant-Colonel (LCol) King.
During the relevant period, Master Warrant Officer (MWO) Donald MacNair was the Mobile Support Equipment Controller and also reported to Lt Vedova. MWO MacNair was senior in rank to Ms. Franke and, as senior non-commissioned officer at BTnO, he also held the position of Unit Disciplinarian. He was responsible for maintaining unit conduct, dress and deportment, and ensuring that orders from the BTnO were passed down through the chain of command.
The Nature of the Complaint
Ms. Franke alleges that the pattern of conduct of her superior officers created a hostile work environment. She claims MWO MacNair repeatedly inquired about her dating habits and, on at least two occasions, made suggestive gestures toward her, including rubbing his chest and running his tongue across his lips. She also testified that MWO MacNair showed her a postcard of a bare-breasted woman, sent to him by Lt Vedova, and made inappropriate comments about the woman's breasts.
With respect to Major Couture, Ms. Franke alleges he referred to her in derogatory terms: on one occasion calling her a "sexatary" and on another, a "Biker Mama." She also complained of comments he made regarding her ability to afford her home, on a corporal's salary.
Ms. Franke filed internal grievances with respect to these incidents, among others, and was unsuccessful at all levels. She claims these grievances resulted in the CAF treating her in a differential manner.
All of these events, according to the Commission, culminated in what is referred to as the "shoe incident": two female officers of the Dress and Deportment Committee visited Ms. Franke's office and reprimanded her for having improper footwear. Owing to her reaction to the reprimand, the Committee, including MWO MacNair and the Base Commander, decided to issue Ms. Franke a recorded warning for insubordination.
Ms. Franke claims that the recorded warning was in direct response to the grievances she had filed. When further grievances were unsuccessful, she filed a complaint with the CHRC. The matter was referred to a tribunal, which decided 2-1 that Ms. Franke's claim was unfounded and that the complaint had been made in retaliation to the disciplinary action for insubordination.
In October 1992, Ms. Franke applied for voluntary release from the CAF, citing the sexual harassment detailed above. She was released effective January 10, 1993.
THE DECISION OF THE TRIBUNAL
The majority of the Tribunal concluded that Ms. Franke had not been subjected to sexual harassment, nor had she suffered differential treatment based on her sex. It found that the incidents were not sufficient to constitute sexual harassment and that her claim was in response to the recorded warning she had received for insubordination.
Ms. Franke's evidence was rejected as "self-serving and exaggerated."2 The evidence of Ms. Franke's psychiatrist, Dr. Halliday was also rejected as questionable: "given in a manner calculated to enhance Corporal Franke's chance of success."3
Further, in denying Ms. Franke's claim of differential treatment, the Tribunal referred to the correspondence between Ms. Franke and her superior officers, in connection with the incidents surrounding the recorded warning, the grievance of her PER score, and her sexual harassment complaint. It found the general tone of Ms. Franke's correspondence was one of disrespect and contempt.4
In summary, the majority concluded that Ms. Franke was neither sexually harassed, nor treated in a differential manner based on her sex.
THE POSITIONS OF THE PARTIES
The Commission submits that the Tribunal erred in the application of the test for sexual harassment. The incidents should have been looked at as a totality: each comment or gesture may not have been sufficient to establish sexual harassment, on its own. However, when viewed as a whole, the Commission claims, citing from the reasons of the minority, the conduct in question caused "a downward spiral with her supervisors that culminated with the shoe incident"5.
The Commission also claims that the Tribunal disregarded material evidence in concluding that the evidence did not support Ms. Franke's allegations. It submits that there was uncontroverted evidence that the conduct was unwelcome at the time it occurred.
Finally, the Commission argues that the Tribunal erred in law by assessing the differential treatment complaint entirely separately from the sexual harassment complaint. If the complainant's grievance was a factor at all in the decision to issue the recorded warning, the Commission submits that that is sufficient to constitute differential treatment.
The CAF responds that the Tribunal was correct in finding that the impugned conduct was in fact neither "unwelcome" nor "unwanted" at the time it occurred. It argues that the Tribunal was acting squarely within its jurisdiction in making this determination and that this Court should defer to the Tribunal's finding.
The CAF also submits that there was an onus on the complainant to notify someone in the organization that she was offended, at the time of the incidents. According to the CAF, the complainant has failed to prove that this was done.
Finally, it is suggested that this case turns on the issue of credibility, which also falls within the jurisdiction of the Tribunal. A tribunal's finding with regard to credibility, the CAF argues, is not to be interfered with by a reviewing court.
RELEVANT LEGISLATION
Canadian Human Rights Act
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.
. . .
14. (1) It is a discriminatory practice,
| (a) in the provision of goods, services, facilities or accommodation customarily available to the general public, |
| (b) in the provision of commercial premises or residential accommodation, or |
| (c) in matters related to employment, |
to harass an individual on a prohibited ground of discrimination.
(2) Without limiting the generality of subsection (1), sexual harassment shall, for the purposes of that subsection, be deemed to be harassment on a prohibited ground of discrimination.
ANALYSIS
| 1. Standard of Review |
When reviewing the decisions of a human rights tribunal, the Supreme Court of Canada has stated that the standard of review on questions of law should be one of correctness: there should be no deference to the tribunal's findings of law.6
On the other hand, when dealing with questions of fact, the tribunal's area of expertise, the appropriate standard of review is patent unreasonableness.7
In the present case, the Tribunal was faced with the task of applying the correct legal test for sexual harassment to the impugned conduct, in order to decide whether that which occurred constituted sexual harassment. This is a question of mixed fact and law.
In Southam, Iacobucci J. of the Supreme Court of Canada stated that questions of mixed fact and law arise where a tribunal is asked to determine whether certain facts satisfy a legal test.
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what "negligence" means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa .8
The appellants in that case were challenging the validity of a decision of the Competition Tribunal, a specialized tribunal made up of experienced businesspeople and judges, with a statutory right of appeal. After an analysis of the Competition Act [R.S.C., 1985, c. C-34] and the makeup of the tribunal, Iacobucci J. determined that the standard of review fell somewhere between correctness, on the one hand, and patent unreasonableness, on the other. He named this standard of review "reasonableness simpliciter", which he described as being akin to the test of "clearly wrong".9
The Canadian Human Rights Act, on the other hand, does not contain a statutory right of appeal, which suggests that the decisions of the Tribunal are to be final, yet there is no privative clause to this effect. The absence of a statutory right of appeal indicates more deference should be shown, while the lack of a privative clause usually signifies less deference.
After careful consideration of these factors, I conclude that the appropriate standard of review in this case, as it was in Southam, is reasonableness: provided the decision is supported by reasons which can be justified by the evidence, the Court should not intervene.
| 2. The Legal Test for Sexual Harassment |
The Supreme Court of Canada set out the test for sexual harassment in the case of Janzen v. Platy Enterprises Ltd.10 Chief Justice Dickson, writing for the Court, provided a non-exhaustive definition of sexual harassment as unwelcome conduct of a sexual nature that is detrimental to the work environment.
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.11
He went on to state that sexual harassment in the workplace is "an abuse of both economic and sexual power." It is "a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it" and which "attacks the dignity and self-respect of the victim both as an employee and as a human being."12
This decision has been the touchstone of sexual harassment cases for almost a decade. Over the years, human rights tribunals have elaborated on the actual application of this test. In the case at bar, in order to assess whether or not the Tribunal applied the test in an appropriate manner, it is important to understand the test itself and how it should be applied.
(a) Unwelcome
The first essential element of the test is to determine whether the conduct was desired or solicited. As stated by Professor A. P. Aggarwal in his book Sexual Harassment in the Workplace, this is essential because "sexual conduct" becomes unlawful only when it is unwelcome.13 Obviously, consensual relationships, by definition, cannot be regarded as harassment.
In order to determine if the conduct is welcome or unwelcome, the Tribunal will look to the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct, the complaint will fail.
This determination largely turns on questions of credibility and may present real problems of evidence for the trier of fact.
The degree of difficulty will depend on the type of activity involved: a pressing sexual advance will normally bring a quick refusal. More subtle solicitations or "verbal" innuendos may be ignored and as such simply endured by the complainant.
Thus, the proper inquiry will not require a verbal "no" in all cases. Nonetheless, the complainant must establish, for instance by her body language or by her repetitive failure to respond to suggestive comments, that she had in some way signalled to the harasser that his conduct was unwelcome. I leave the door open to certain limited circumstances which may force an employee to endure objectionable conduct, such as the fear of losing a job. In these cases, the appropriate standard against which to assess the conduct will be that of the reasonable person in the circumstances.
(b) Sexual in Nature
The second element of the definition requires the conduct be sexual in nature. Human rights tribunals have recognized a broad scope of conduct which may fall under the definition of sexual harassment, depending on the circumstances, including gender-based insults, sexist remarks, comments about a person's looks, dress, appearance or sexual habits.14
Similarly, Dickson C.J. endorses a broad approach in Janzen, when, in an attempt to arrive at a definition of sexual harassment, he cites passages from various texts with approval:
| The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment . . . . |
. . .
| Sexual harassment is any sexually-oriented practice that endangers an individual's continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity. Harassment behaviour may manifest itself blatantly in forms such as leering, grabbing, and even sexual assault. More subtle forms of sexual harassment may include sexual innuendos, and propositions for dates or sexual favours. |
. . .
| Sexual harassment can manifest itself both physically and psychologically. In its milder forms it can involve verbal innuendo and inappropriate affectionate gestures. It can, however, escalate to extreme behaviour amounting to attempted rape and rape. Physically the recipient may be the victim of pinching, grabbing, hugging, patting, leering, brushing against, and touching. Psychological harassment can involve a relentless proposal of physical intimacy, beginning with subtle hints which may lead to overt requests for dates and sexual favours.15 |
Professor Aggarwal's book16 also offers a useful discussion of what types of conduct will constitute sexual harassment. Several relevant passages follow:
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.
. . .
Sexual annoyance, the second type of sexual harassment, is sexually related conduct that is hostile, intimidating, or offensive to the employee, but nonetheless has no direct link to any tangible job benefit or harm. Rather, this annoying conduct creates a bothersome work environment and effectively makes the worker's willingness to endure that environment a term or condition of employment.
The second subgroup encompasses all other conduct of a sexual nature that demeans or humiliates the person addressed and in that way also creates an offensive work environment. This includes sexual taunts, lewd or provocative comments and gestures, and sexually offensive physical contact.
In summary, sexual harassment can manifest itself both physically and psychologically. In its milder form it may be confined to verbal innuendoes and inappropriate affectional gestures. Sexual harassment can, however, escalate to extreme behaviour amounting to attempted or actual rape.
Verbally, sexual harassment may include:
| " unwelcome remarks |
| " jokes that cause awkwardness or embarrassment |
| " innuendoes or taunting |
| " gender-based insults or sexist remarks |
| " displaying of pornographic or other offensive or derogatory pictures |
| " telephone calls with sexual overtones |
Physically, the recipient female employee may be the victim of:
| " pinching |
| " grabbing |
| " hugging |
| " patting |
| " leering |
| " brushing against |
| " touching |
| " kissing |
Psychological harassment can involve:
| " a relentless proposal of physical intimacy, |
| " beginning with subtle hints which may lead to overt requests for dates, |
| " sexual favours, and |
| " propositioning |
As a result, a relatively broad range of conduct will fall within the ambit of "sexual in nature". The Tribunal's determination should be conducted on a case-by-case basis, based on the test of the reasonable person in the circumstances.
There has been some concern regarding the appropriateness of the "reasonable person" standard in sexual harassment cases.17 Some critics feel an objective standard has no place in employee discipline.18 While others warn of the dangers associated with assessing sexual harassment based on what the "reasonable person" would find acceptable, when acceptable conduct in certain workplaces may be defined by male-dominated sexual stereotypes.19
In my opinion, the appropriate standard of review is that of the reasonable person in the circumstances. However, this objective standard should not be applied in a vacuum. Bearing in mind the above debate, the trier of fact should be sensitive to stereotyped norms of what constitutes acceptable social conduct and consider the context in which the impugned conduct took place, when determining how the reasonable person would react in similar circumstances.
If the trier of fact is satisfied that the conduct was unwelcome and "sexual in nature", he or she should proceed to an assessment of the persistence and gravity of the conduct. This will generally enable the tribunal to determine whether the conduct was detrimental to the work environment.
(c) Persistence and/or Gravity of the Conduct
The simple fact that the infringement in question is one of harassment requires an element of persistence or repetition, although in certain circumstances a single incident may be enough to create a hostile work environment.
On the one hand, some forms of sexual harassment, such as physical assault, may be severe enough to constitute, in themselves, sexual harassment. Such incidents would, because of their gravity, immediately create a poisoned work environment. On the other hand, a crude sexual joke, although perhaps in poor taste, will not generally be enough to constitute sexual harassment and would rarely create a negative work environment.
I agree with the proportionality test proposed by M. Drapeau in Le harcèlement sexuel au travail:
[translation] The equation as to the harassing nature of the conduct is calculated according to the "inversely proportional" rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated.20
Again, in assessing whether the conduct is sufficiently severe or persistent to create a poisoned workplace, the trier of fact will apply the objective "reasonable person standard" in the context.
(d) Notification to the Employer
Although this was not an element considered by the Supreme Court in Janzen, I believe that fairness requires the employee, whenever possible, to notify the employer of the alleged offensive conduct.
In recent years, courts and tribunals have insisted on a degree of vigilance over the work environment, which requires employers to provide a workplace free from harassment. Conversely, in my opinion, in order for sexual harassment policies to work, the employee should inform the employer of any problems, in order to give him or her the opportunity to remedy them.
This requirement will exist where the employer has a personnel department along with a comprehensive and effective sexual harassment policy, including appropriate redress mechanisms, which are already in place.
The goal of a sexual harassment policy is to achieve a healthy workplace; and, therefore, the sooner action is taken to eliminate harassing conduct, the less likely it is that any such conduct will become detrimental to the work environment.
| 3. Did the Tribunal Apply the Proper Test for Sexual Harassment? |
In essence, the Tribunal decided that the complaint was not substantiated because the incidents were not viewed by the complainant as any form of harassment at the time that they occurred and they were not sufficient to constitute sexual harassment.
The relevant passage of the majority decision reads as follows:
After a review of the evidence as a whole, Corporal Franke has not proven that she was the victim of sexual harassment or of any discriminatory practices based upon her sex. There is evidence of comments made by Major Couture and of comments and gestures made by M.W.O. MacNair which Ms. Franke deems sexually harassing. On the weight of the evidence, it cannot be said that these comments or gestures were viewed by the Complainant as any form of harassment at the time they were made. This of course does not lead necessarily to the conclusion that the incidents were not sexually harassing. However, we find that the complaint before this Tribunal was made in retaliation for the disciplinary action for insubordination, which discipline did not arise out of any earlier refusal by Ms. Franke to "play the games" as she alleges, but out of her disrespectful behaviour with the dress committee. The dress committee did not have any secondary agenda to harass Ms. Franke as she alleges. Finally, we find that the incidents alleged are not sufficient to constitute sexual harassment.21
In my opinion, the Tribunal applied the proper test: it looked at the comments to determine whether they were unwelcome at the time they were made and whether, being sexual in nature, they were serious enough to constitute sexual harassment.
This conclusion is based on the evidence as a whole. The majority did not believe much of the complainant's allegations, pointing to numerous contradictions between the evidence of the complainant and that of the other witnesses.22
With respect to whether the conduct was welcomed by Ms. Franke at the time it occurred, a review of the transcript shows that there was evidence to support the Tribunal's findings that Ms. Franke did not view the conduct of Major Couture, nor that of MWO MacNair, as any form of harassment at the time it occurred.23
For example, when asked if Ms. Franke had objected to his questions regarding housing on the Base, Major Couture stated that she had given no indication that she was offended.
| Q. Did you form any impressions at that time that anything you were saying was inappropriate? |
| A. No, I didn't, not at all. |
| Q. Did Ms. Franke make any comment to you that would indicate that she didn't welcome those type of questions? |
| A. Not at all. In fact, our relationship continued as harmoniously as it was before those conversations.24 |
With respect to the "Biker Mama" comment, Major Couture stated that it was "just a friendly, non-derogatory comment" and that he did not recall her reaction, but there was "certainly not any negative reaction."25
This view was shared by Ms. Powers, a civilian employee of the CAF, who worked with Ms. Franke at the time of the incidents and who was present when Major Couture referred to Ms. Franke as a "Biker Mama". She stated that Ms. Franke had laughed off both the "sexatary" and the "Biker Mama" comments.
| Q. Did Ms. Franke ever advise you that she was called a "sexatary" by Mr. Couture? |
| A. She came back after taking minutes of a meeting, and had come to me and had told me that upon entering the room, she had been referred to as a "sexatary," yes. |
| Q. And what did she say about that, to you? |
| A. She found it to be, in my words, very"you know, amused by it, it (sic ) didn't seem to be bothered by it. |
| Q. And did you and her ever discuss the term "Biker Mama"? |
| A. I was actually there when Major Couture brought up the "Biker Mama" part to her. And it was"once again, it was laughed, you know, chuckled about.26 |
Similarly, the testimony of Ms. Eadie, a co-worker, revealed that:
| Q. And that's when you remembered that you were there, and that's when you remembered what Ms. Franke had told you? |
| A. It was mentioned to me that it happened in June, so there's no way that I could have been anywhere else. And I had remembered that we had discussed it. There was "sexatary" and "Biker Mama". |
| Q. And you said that Ms. Franke thought they were a joke? |
| A. Well, she had laughed when she said it, so I assumed it was a joke. |
| Q. So you weren't there for either occasion? |
| A. I never was there when it was actually said. |
| Q. And what you remember now is that Ms. Franke told you after each of those times? |
| A. Right. |
| Q. And that she laughed when she said it? |
| A. It was only the one time, because both statements were made at the same time, as far as I know. And she laughed when she said both of those comments to me. |
| Q. What makes you think both of those statements were said at the same time? |
| A. I have no idea, but she said them to me at the same time. |
| Q. Ms. Franke commented on both of them at the same time to you? |
| A. To me. |
| Q. So she said this is what Major Couture said to me, and as she said it she laughed? |
| A. Right. |
| Q. Do you remember anything more about that conversation? |
| A. No. |
| Q. Do you remember how long it was, or that's the extent of the memory that you have? |
| A. That's it, yes. |
Later in her testimony, Ms. Eadie stated that Ms. Franke participated freely in the joking that went on at the Base, and gave no indication that she was offended in any way.
| Q. Well, were there jokes, were there a lot of sexual comments made? |
| A. There was lots of jokes, but I wouldn't say that they were all sexual. I mean some would be sexual, some would be racist I guess, but they weren't all. I mean the jokes were all fine with me, I didn't find them offensive. |
| Q. Did Ms. Franke ever indicate that she was offended by anything that was going on? |
| A. No, never, she always took part in whatever was going on in the canteen. |
| Q. What do you mean, she always took part? |
| A. Well, if she was in there having coffee, she never ever got up and left like she was offended, so she sat there and listened to everybody and participated in the conversation. |
| Q. And how would she participate? |
| A. Well, by laughing at the jokes and stuff. Or if she had a joke or whatever. |
| Q. So would she tell jokes then, that were off-colour? |
| A. I don't think I ever heard her tell a joke. She had mentioned things in the canteen about men and stuff like that. |
| Q. Could you be a little more descriptive, what do you mean men and stuff; was she talking just to you? |
| A. No, to everybody in the canteen. She used to sit back and say, "Geez, I wish I could get laid." And, "There's not enough men around here, there's a man shortage." And she used to talk about her Frenchman boyfriend, that's how she would refer to him, and sex on the beach and stuff like that, in front of everybody.27 |
With respect to MWO MacNair's comments and gestures, and whether Ms. Franke had asked Lt Vedova to have him stay away from her, Lt Vedova stated as follows:
| Q. Was Mr. Macnair ever inappropriate with you? |
| A. Never. Always respectful. |
| Q. Did you ever hear any allegations from anyone else in the office, that Mr. Macnair was being inappropriate with them? |
| A. Never. |
| Q. Did you ever hear any allegations that he was inappropriate with Ms. Franke? |
| A. Never. |
| Q. And I believe you've already indicated that Ms. Franke never indicated any problems with respect to Mr. Macnair? |
| A. No. |
| Q. Did Ms. Franke ever ask you to keep Mr. Macnair away from her? |
| A. Not to my recollection, ever. |
| Q. Would you remember something like that? |
| A. I would remember something like that. |
| Q. Was there any indication that Ms. Franke was intimidated or terrified of Mr. Macnair in any way? |
| A. No.28 |
In addition, MWO MacNair stated that he had been given no indication whatsoever that Ms. Franke was uncomfortable.
| Q. Did you ever have any indication that Ms. Franke was uncomfortable in the office, with anyone in the office? |
| A. No, I didn't. |
| Q. Did you ever have any indication, particularly with respect to yourself? |
| A. None whatsoever; none whatsoever.29 |
In the end, the Tribunal did not give much weight to the complainant's testimony that she was offended by these comments at the time they were made. With respect to the testimony of Ms. Campbell, one of the witnesses, which suggests Ms. Franke was offended at the time by some of the comments,30 the Commission submits that the Tribunal's failure to expressly consider this evidence is a reviewable error. In this case, where the bulk of evidence supports the Tribunal's finding and the task of weighing the evidence lies with the Tribunal, I am not prepared to find that the Tribunal ignored relevant evidence or that its finding was patently unreasonable.
Further, the comments were not found to be sufficient to constitute sexual harassment.
Referring to the "sexatary" comment made by Major Couture, Lt Vedova stated that Ms. Franke did not indicate that she thought the comment was a "serious" incident.
| Q. Do you recall Ms. Franke ever coming to you to discuss a comment that Mr. Couture had made to her regarding the word "sexatary"? |
| A. Yeah, I"and this is"I can't remember, I think I was at the meeting when it occurred. And there was some discussion afterwards, but there was no indication that this was something serious or"it was definitely inappropriate, but" |
| Q. When you say it was inappropriate, is that your view or was that Ms. Franke's view? |
| A. That was her view. And it was my view as well. |
| Q. She said she thought that was inappropriate to you? |
| A. I don't remember exactly what she said, but it was definitely uncalled for. |
| Q. What I would like to know, Ms. Vedova, is after Ms. Franke made this comment to you"how many times did she make it? |
| A. We discussed it after"I think it was right after the meeting we discussed it, and that was that. She never asked me to go to confront the major or anything, you know. I was in an awkward position, basically I would be confronting Major Couture's behaviour. Granted it was inappropriate, but she never said that she wanted me to follow through or that she thought that this was anything serious.31 |
The evidence showed that there was a fairly collegial atmosphere at the BTnO. This included occasional sexual jokes and comments, in which Ms. Franke actively participated.32 In the circumstances and based on the evidence, I am of the opinion that the Tribunal's determination that the alleged incidents were not sufficient to constitute sexual harassment is reasonable and satisfies the standard of review detailed above.
In Southam, supra, Iacobucci J. stated that when applying the standard of reasonableness simpliciter, if a tribunal's conclusion is reasonable and based upon the evidence, a reviewing court should not intervene.
I wish to observe, by way of concluding my discussion of this issue, that a reviewer, and even one who has embarked upon review on a standard of reasonableness simpliciter, will often be tempted to find some way to intervene when the reviewer him"or herself would have come to a conclusion opposite to the tribunal's. Appellate courts must resist such temptations. My statement that I might not have come to the same conclusion as the Tribunal should not be taken as an invitation to appellate courts to intervene in cases such as this one but rather as a caution against such intervention and a call for restraint. Judicial restraint is needed if a cohesive, rational, and, I believe, sensible system of judicial review is to be fashioned.33
In my opinion, the same principle applies here.
| 4. Did the Tribunal Err in its Analysis of the Differential Treatment Complaint? |
In addition to the allegations of sexual harassment contrary to subsection 14(1) of the CHRA, the complainant also alleges adverse differential treatment, contrary to section 7 of the Act.
In dealing with this allegation, the majority concluded (at paragraph 53):
There was no evidence that any complaint made by Corporal Franke about the actions of Major Couture or M.W.O. MacNair were taken as serious complaints and consequently, it strains credulity to believe that retaliation by them would involve the complicity of at least 4 members of the Base Discipline Committee, M.W.O. MacNair, W.O. Boudreau, Sergeant Caron and Base Chief Dougherty. This firmly held conviction on the part of the Complainant may be, at once, the manifestation of the paranoia and the grandiose ideation described by Dr. Passey.
The Tribunal found the complainant was not subjected to any adverse treatment because of her harassment complaint. There was plenty of evidence to support such a finding. Despite the allegations made by the complainant that the "shoe incident" and subsequent recorded warning were linked to the alleged incidents of sexual harassment, the evidence points to the contrary. The "shoe incident" took place on October 29, 1991, a month after the alleged "sexual innuendos" had ended.
Two members of the Female Advisory Committee, who were carrying out visits to all units on the Base at the time, with respect to matters of dress and deportment, showed up unannounced at Ms. Franke's office. However, the complainant acknowledged that two weeks before, one of the members of the Committee brought to her attention the fact that the shoes she was wearing were not regulation and that they would conduct an inspection.34 On the day of the inspection, the complainant was still wearing the non-regulation shoes.
The complainant was insubordinate with the two senior female officers and consequently received a recorded warning on November 26, 1991 for insubordination. There is no evidence that the recorded warning flowed from the internal grievances regarding the alleged incidents of sexual harassment. Further, I note that the present sexual harassment complaint was in fact filed only after the recorded warning for insubordination"four months after the alleged incidents had ceased.
The evidence shows that the subsequent unfortunate events and the deterioration of Ms. Franke's health had little to do with any form of sexual harassment.
Dr. Passey, whose testimony was found very credible by the Tribunal concluded:
But that subsequently resulted in a Recorded Warning for insubordination, or difficulties with attitude in following orders. And I fail to see the connection there at all, aside from the fact that Ms. Franke somehow feels that this is all related to a plot to get her to change her sexual beliefs.
That to me is more an indication of the degree"one of two things. Either manipulation on her part, or quite likely paranoia on her part, that this is all part of an evolving plot of persecution against her. So I don't see how there's any connection between the two.35
Based on this evidence, I cannot find the Tribunal's conclusion to be unreasonable.
CONCLUSION
The Tribunal rejected much of Ms. Franke's testimony along with that of her psychiatrist, Dr. Halliday, on the grounds that they lacked credibility. Findings of fact and findings of credibility lie squarely within the jurisdiction of the Tribunal and this Court will not interfere lightly in these areas. The Commission has failed to demonstrate that these findings were patently unreasonable, or made in bad faith.
As a result, I conclude that the weight of evidence supports the Tribunal's findings that the impugned conduct was not, in fact, unwelcome or unwanted at the time it occurred and was not severe or persistent enough to constitute sexual harassment. Finally, the evidence also supports the Tribunal's conclusion that Ms. Franke was not subjected to differential treatment based on her sex.
As such, and for all the foregoing reasons, I am of the opinion that the Tribunal's conclusion was reasonable and should not be disturbed.
The application for judicial review is dismissed.
1 R.S.C., 1985, c. H-6.
2 Franke v. Canada (Canadian Armed Forces), [1998] C.H.R.D. No. 3 (QL), per majority, at para. 44.
3 Id., at para. 46.
4 Id., at paras. 73-89.
5 Supra, note 2, per minority, at para. 689.
6 ;Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
7 Ibid.; see also University of British Columbia v. Berg, [1993] 2 S.C.R. 353.
8 ;Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pp. 766-767.
9 Id., at p. 778.
10 [1989] 1 S.C.R. 1252.
11 Id., at p. 1284.
12 Ibid.
13 A. P. Aggarwal, Sexual Harassment in the Workplace, 2d ed. (Toronto: Butterworths, 1992), at p. 64.
14 See e.g. Lobzun v. Dover Arms Neighbourhood Public House Ltd. (1996), 25 C.H.R.R. D/284; see also MacBain v. Canada (Human Rights Commission) (1984), 5 C.H.R.R. D/2285.
15 Janzen, supra, note 10, at pp. 1277, 1280-1281 (references omitted).
16 Aggarwal, supra, note 13, at pp. 7-14.
17 For a brief discussion of this debate, see Aggarwal, supra, note 13, at pp. 72-73.
18 See e.g. Re Ottawa Board of Education and Ottawa Board of Education Employees' Union (1989), 5 L.A.C. (4th) 171 (M. Mendel).
19 See K. Gallivan, "Sexual Harassment After Janzen v. Platy : The Transformative Possibilities" (1991), 49 U.T. Fac. L. Rev. 27.
20 M. Drapeau, Le harcèlement sexuel au travail, Cowansville (Que): Éditions Yvon Blais, 1991, à la p. 102.
21 Supra, note 2, at para. 52.
22 See e.g. id., at paras. 8, 16 and 21.
23 Id., at para. 52.
24 Transcript, vol. 12, at pp. 1700-1701.
25 Id., at p. 1712.
26 Transcript, vol. 13, at p. 2028.
27 Transcript, vol. 18, at pp. 2855-2856.
28 Transcript, vol. 14, at pp. 2157-2158.
29 Transcript, vol. 18, at pp. 3031-3032.
30 Transcript, vol. 6, at pp. 871-875.
31 Transcript, vol. 14, at pp. 2151-2152.
32 See e.g. the testimony of MWO MacNair, Transcript, vol. 18, at pp. 3009-3010; Mr. Churchill, Transcript, vol. 13, at pp. 1999-2000, 2002-2004; and Ms. Eadie, Transcript, vol. 18, at pp. 2855-2856.
33 Southam, supra, note 8, at p. 788.
34 Transcript, vol. 1, at p. 137.
35 Transcript, vol 15, at p. 2431.