A-958-84
Dennis Brennan (Applicant)
v.
The Queen, as represented by the Treasury Board
and Bonnie Robichaud (Respondents)
Court of Appeal, Thurlow C.J., Pratte and Mac-
Guigan JJ.—Ottawa, November 7, 8, 9, 23, 1984
and February 18, 1985.
Human rights — Sexual harassment — Discrimination —
Respondent Robichaud subjected to sexual overtures by
supervisor Brennan while on probation as lead hand on clean
ing staff at military base — On occasion, Brennan threatening
to charge Robichaud with disobedience if she left his office,
and saying that "Without my support you'll fall flat on your
face" — Human Rights Tribunal dismissing Robichaud's
complaint alleging sexual harassment, discrimination and
intimidation against Brennan and Department of National
Defence, on ground sexual acts could not have occurred with
out Robichaud's consent — Review Tribunal allowing appeal
on holding Department of National Defence liable for Bren-
nan's conduct — Brennan found guilty for failing to rebut
prima facie case established by Robichaud and for creating
poisoned work environment, contrary to s. 7(b) of Act —
Sexual harassment constituting discriminatory practice —
Review Tribunal's finding of coerced sexual acts open to it on
evidence — Review Tribunal reversing inference drawn from
facts, not initial Tribunal's view of facts, which inference
constituted palpable and overriding error — Statement that
onus of proof shifting to Brennan not error of law as not
statement of law — Allegation that statement that no ques
tions directed towards proving consent not unsupportable find
ing of fact, since extent of such questions insignificant and not
finding of fact on which decision based — Sexual harassment
occurring constituting discriminatory practice because adverse
differentiation in course of employment on ground of sex — S.
7 covering superior in work place exercising authority over
subordinate of opposite sex in vulnerable position to intimi
date subordinate and secure participation in sexual conduct —
In existing power-vulnerability relationship, mere fact of
sexual encounters giving rise to prima facie case of sexual
harassment and onus on manager to rebut case — Bell v.
Ladas applied — Brennan's conduct destroying normal work
place relationship between supervisor and employee, thus
making Robichaud's working conditions worse because female
— Manifestation of adverse effect produced by unlawful dis
criminatory conduct — Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 2(a), 3, 4, 7(b), 41, 42, 42.1(4),(5), 48(5) (as
am. by S.C. 1980-81-82-83, c. 143, s. 23), (6) (as am. idem),
63 — Interpretation Act, R.S.C. 1970, c. I-23, s. 11.
Human rights — Vicarious liability — Review Tribunal
erred in finding Crown strictly liable for supervisor's sexual
harassment of female employee — S. 4, providing anyone
engaging in discriminatory practice subject to orders in ss. 41
and 42, meaning person personally engaging in discriminatory
practice or having someone else do it for him on his instruc
tions — No obligation on employer to prevent employees from
engaging in discriminating practices — Statute silent about
vicarious, absolute or strict liability in accordance with
common law tort or criminal law principles — Conduct of
employees lower than Minister not attracting Crown's liability
— Review Tribunal considering irrelevant matters not con
stituting adverse distinguishing on basis of sex such as
Crown's failure to investigate more thoroughly Robichaud's
complaint and source of complaints against her, change in
work assignment giving impression that Robichaud dis
favoured and that Brennan not disfavoured, and that Bren-
nan's activities in relation to witnesses not monitored —
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2(a),
3, 4, 7(b), 41, 42, 42.1(4),(5), 48(5) (as am. by S.C. 1980-81-
82-83, c. 143, s. 23), (6) (as am. idem), 63.
Jurisdiction — Federal Court, Appeal Division — Applica
tion to set aside decision of Canadian Human Rights Review
Tribunal allowing appeal from decision of Human Rights
Tribunal — Review Tribunal finding employee's supervisor
guilty of sexual harassment and him and employer liable —
Question of damages reserved for argument — Partial deci
sion constituting reviewable judgment or order since clearly
intended to be final on issues considered — VIA Rail Canada
Inc. v. Butterill, authority for proposition disposition that
finally disposes of less than all issues can be decision under s.
28, applied — Allowing judicial review in present circum
stances in accordance with policy of upholding integrity of
administrative proceedings — Since VIA Rail decision, tri
bunals pausing before proceeding with consequential decisions
to allow important matters on which final decision reached to
be reviewed judicially — Final decision on all issues excepting
remedy qualifying for judicial review since by such decision
substantive question before tribunal finally disposed of —
Federal Court Act, R.S.0 1970 (2nd Supp.), c. 10, s. 28.
These are applications for review of a decision of a Human
Rights Review Tribunal. The respondent, Robichaud, filed a
complaint alleging sexual harassment, discrimination and
intimidation by her supervisor, Brennan, and by the Depart
ment of National Defence. Robichaud was on probation as a
lead hand on the cleaning staff at a military establishment
when the sexual advances occurred. The Human Rights Tri
bunal dismissed Robichaud's complaint on the ground that the
sexual acts complained of could not have occurred without
Robichaud's consent. The Review Tribunal reversed the infer
ence of fact that Robichaud consented to the activity in ques
tion, allowed Robichaud's appeal and found Brennan guilty of
sexual harassment and found both him and his employer liable
for his actions. The Review Tribunal found that Robichaud had
established a prima facie case of sexual harassment and that
the onus shifted to the defendants to show that these acts did
not constitute sexual harassment. Brennan was found guilty
because he failed to rebut the prima facie case and because he
had created a poisoned work environment contrary to para
graph 7(b) of the Canadian Human Rights Act. The Review
Tribunal reserved for argument its decision as to the damages
to which Robichaud was entitled. The issues are whether the
Review Tribunal's decision constituted a "decision or order"
within the meaning of subsection 28(1) of the Federal Court
Act; whether the sexual harassment found to have occurred is a
discriminatory practice within the meaning of the Act; and,
whether the Crown is liable for the conduct of its employee
Brennan.
Held, the applications should be allowed and the Review
Tribunal's decision set aside in so far as it purports to hold the
Crown liable.
Per Thurlow C.J.: The Review Tribunal's decision under
attack is not a decision or order within the meaning of subsec
tion 28(1) of the Federal Court Act. There is no indication of
what it is that the complainant is to be compensated for or of
the basis of the assessment to be made. Under section 41 a
tribunal may dismiss a complaint or make an order for relief of
the kind set out in subsections 41(2) and (3). Subsection
42.1(6) empowers the Review Tribunal to allow the appeal and
make the order that the Tribunal should have made. This adds
the power to allow the appeal, but by itself it has no effect to
grant a remedy. Without an order of the kind contemplated by
subsection 41(2) or (3) it would simply leave matters up in the
air. The power of paragraph 42.1(6)(b) is not divisible, and in
such a situation the allowing of an appeal without an order is
not a decision or order. A decision setting aside the dismissal
under appeal and making the order that is to take its place is
required before there is a reviewable decision or order.
The Review Tribunal's finding that Robichaud was coerced
into participating in sexual acts with Brennan was open to it on
the evidence and within the power of the Review Tribunal to
make. Therefore the findings can be set aside only if the
Review Tribunal erred in law in making them. The applicant
submits that the Review Tribunal erred when it said that the
onus of proof shifted to him, and that the statement, that in the
cross-examination of Robichaud no questions were directed
towards proving that she consented to the acts, was an unsup
portable finding of fact. The statement about the onus of proof
shifting was not a statement of law. It means only that the
evidence for the complainant was so strong that in the absence
of evidence to the contrary her case was made out. While
counsel was able to point to cross-examination of Robichaud
directed to the question of consent, the extent of such question
ing was not significant. It was more significant for what was
left out of the cross-examination. The statement of the Review
Tribunal concerning cross-examination was not a finding of
fact on which the decision is based.
The sexual harassment found to have occurred is a dis
criminatory practice by reason of its being an adverse differen
tiation in the course of Robichaud's employment on the ground
of sex. Section 7 covers the situation of a superior in the work
place exercising his position and authority over a subordinate of
the other sex, who was in a vulnerable position, to intimidate
her and secure participation in sexual activities. The case is
similar to Bell v. Lacks, where it was said that a person who is
disadvantaged because of her sex is being discriminated against
in her employment when employer conduct denies her financial
rewards because of her sex or exacts some form of sexual
compliance to improve or maintain her existing benefits. Bren-
nan's conduct destroyed the normal work-place relationship
between supervisor and employee and thus made her working
conditions worse because she was a woman. This is a manifesta
tion of an adverse effect produced by the unlawful discrimina
tory conduct.
The Review Tribunal's decision as to the employer's liability
is not sustainable. It is based on the concept that under the Act
the Crown is strictly liable for the actions of its supervisor, a
concept for which there is no basis in law. Section 4 provides
that "anyone found to be engaging or to have engaged in a
discriminatory practice may be made subject to an order
provided in sections 41 and 42." This means that if a person has
personally engaged in a discriminatory practice or if someone
else does it for him on his instructions he may be subjected to
an order. There is nothing to impose on employers an obligation
to prevent or to take effective measures to prevent employees
from engaging in discriminatory practices. Nor is there any
thing imposing vicarious, absolute or strict liability in accord
ance with common law tort or criminal law principles for-
discrimination engaged in by someone else, whether an
employee or not.
Under the Act, in the case of a corporation, the authorization
that will attract liability must come from the director level.
With respect to the Public Service, the Crown is not liable for
the conduct of those lower than the official or body under
whose authority the operation is carried on. In the instant case,
these were the Minister of National Defence and the Treasury
Board. There is no suggestion that Brennan had authority from
such sources to harass Robichaud.
Finally, the decision should not be allowed to stand because
the Review Tribunal considered matters which were not
adverse distinguishing on the basis of sex by the Crown against
Robichaud, such as the Crown's failure to investigate more
thoroughly Robichaud's complaint and the source of the com
plaints against her, the change in her work assignment giving
the impression that she was disfavoured and that Brennan was
not disfavoured, and that Brennan's activities in relation to
witnesses were not monitored. None of these is relevant to the
issue of the Crown's liability.
Per Pratte J.: This decision is reviewable under subsection
28(1) of the Federal Court Act. There is no material distinction
between this case and VIA Rail Canada Inc. v. Butterill, et al.
Per MacGuigan J.: The applications should be dismissed.
The partial decision of the Review Tribunal, since it is clearly
intended to be a final decision on the issues considered, is a
reviewable decision under subsection 28(1). The VIA Rail
Canada Inc. v. Butterill, et al. case is authority for the proposi
tion that a disposition that finally disposes of less than all of the
issues before a tribunal can be a decision under section 28. The
result of the administrative process here is more incomplete
than in the VIA Rail case. However, allowing judicial review to
take place in the present circumstances. would be to uphold the
integrity of the administrative proceedings, a prime consider
ation expressed by Jackett C.J. in In Re Anti-dumping Act and
in re Danmor Shoe Co. Ltd. Tribunals have made it a practice
since the VIA Rail case to pause before proceeding with the
consequential decisions to allow the important matters on
which it had reached final decision to be reviewed judicially. A
clearly final decision on all issues short only of the remedy or
relief should qualify for judicial review since by such a decision
the substantive question before the tribunal is finally disposed
of.
Canadian human rights tribunals have consistently held that
sexual harassment can amount to sexual discrimination. Given
the power-vulnerability relationship existing here, the mere fact
of sexual encounters gives rise to a prima facie case of sexual
harassment and to an onus on the manager to show that the
acts did not constitute sexual harassment. The Review Tribunal
found that Brennan failed to discharge this onus, and also
found him guilty of sexual harassment because of his creation
of a poisoned work environment. The Canadian Human Rights
Act requires simply adverse differentiation against an
employee, a less precise and more easily established offence.
Here sexual acts of a coerced nature which amounted to
adverse differentiation having actually occurred, a poisoned
work environment is a fortiori, but not necessary for the
offence. There was adequate evidence for the Review Tribunal
to find Brennan guilty of adverse differentiation based on sex.
The Review Tribunal reversed an inference drawn from the
facts rather than the initial tribunal's view of the facts. The
Tribunal's inference was a palpable and overriding error and so
was subject to reversal.
According to the Supreme Court of Canada, the Ontario
Human Rights Code forecloses any civil action based on a
breach of the Code and also excludes any common law action
based on an invocation of the public policy expressed in the
Code. Similar considerations apply to the Canadian Human
Rights Act. Thus one looks for the principles of liability in the
four corners of the statute itself. Section 2 states that the
principle of the Act is that "every individual should have an
equal opportunity ... to make for himself ... the life that he
... is able and wishes to have ... without being hindered in or
prevented from doing so by discriminatory practices." The
combined effect of this principle and section 11 of the Interpre
tation Act amounts to a virtual direction to the Court to
interpret the Act so as to render the largest and most liberal
protection to those discriminated against. Such protection must
needs include recourse against an employer. The broad reme
dies provided by section 41, the general necessity for effective
follow-up, including the cessation of the discriminatory prac
tice, imply a similar responsibility on the part of the employer.
It is implied that if the development of a common law tort of
discrimination is preempted by the legislative development of a
human rights code, such a development should leave those
discriminated against with rights of enforcement at least as
broad as those which they would have had at common law, and
would therefore include some concept of employer liability. The
words "directly or indirectly" in section 7 indicate, particularly
with respect to this form of discrimination, a clear acceptance
of employer liability. "Directly or indirectly" connote some
form of participation by those deemed responsible. An employ
er must have at least an opportunity of disclaiming liability by
reasons of bona fide conduct. The Review Tribunal correctly
stated the law when it said that the liability of the employer for
its supervisory personnel is a strict liability. For the employer to
allow Robichaud to have her duties adversely affected just after
having completed her probation without complaint, as a result
of the letters and petitions against her, which were part of an
orchestrated campaign directed by Brennan, was evidence on
the basis of which the Review Tribunal could find a lack of due
care and concern. There is no evidence that the Review Tri
bunal based its decision on an erroneous finding of fact. The
final argument was that the Review Tribunal was not justified
in substituting its view of the facts in relation to the employer's
liability for that of the initial tribunal. Since the first Tribunal
found that Brennan did not sexually discriminate against Robi-
chaud given her consent, it did not have to decide the issue of
employer's liability. The respondents argued that the statement
that the Tribunal could not hold the employer (excluding
Brennan) responsible for adverse differential treatment was an
alternative finding that Brennan was solely liable for his con
duct. What the Tribunal must have had in mind was an
independent discriminatory practice, subsequent and unrelated
to Brennan's, which the employer might have been thought to
be liable for.
CASES JUDICIALLY CONSIDERED
APPLIED:
VIA Rail Canada Inc. v. Butterill, et al., [1982] 2 F.C.
830 (C.A.); Cherie Bell and Anna Korczak v. Ernest
Ladas and The Flaming Steer Steak House (1980), I
C.H.R.R. D/155 (Ont. Board of Inquiry); In re Anti-
dumping Act and in re Danmor Shoe Co. Ltd., [1974] I
F.C. 22 (C.A.); Barnes v. Costle, 561 F.2d 983 (D.C. Cir.
1977); Stein et al. v. The Ship "Kathy K", [1976] 2
S.C.R. 802; 62 D.L.R. (3d) 1; Turenko v. Royal Canadi-
an Mounted Police Commissioner (1984), 55 N.R. 314
(F.C.A.).
DISTINGUISHED:
National Indian Brotherhood, et al. v. Juneau, et al.,
[1971] F.C. 73 (C.A.); Hoffmann-La Roche Limited v.
Delmar Chemicals Limited, [1966] Ex.C.R. 713; Bundy
v. Jackson, 641 F.2d 934 (D.C. Cir. 1981).
CONSIDERED:
Chuba v. Canadian Human Rights Tribunal, judgment
dated November 7, 1984, Federal Court, Appeal Divi
sion, A-193-84, not yet reported (affirming sub nom.
Jane Kotyk and Barbara Allary v. Canada Employment
and Immigration Commission and Jack Chuba (1983),
Human Rights Review Tribunal, unreported); Edilma
Olarte et al. v. Rafael DeFilippis and Commodore Busi
ness Machines Ltd. (1983), 4 C.H.R.R. D/1705 (Board
of Inquiry).
REFERRED TO:
The Attorney General of Canada v. Cylien, [1973] F.C.
1166 (C.A.); Smith Kline & French Inter-American
Corporation v. Micro Chemicals Limited, [1968] 1
Ex.C.R. 326; Ferrow v. Minister of Employment and
Immigration, [1983] 1 F.C. 679 (C.A.); Seneca College
of Applied Arts and Technology v. Bhadauria, [1981] 2
S.C.R. 181; 124 D.L.R. (3d) 193; Re Nelson et al. and
Byron Price & Associates Ltd. (1981), 122 D.L.R. (3d)
340 (B.C.C.A.); In the Matter of an Appeal from a
Board of Enquiry under the Ontario Human Rights
Code, etc. Commodore Business Machines Ltd., and
Rafael DeFilippis v. The Minister of Labour for Ontario
et al., judgment dated November 22, 1984, Ontario
Divisional Court, A-279-83, not yet reported; R. v.
Waterloo Mercury Sales Ltd. (1974), 18 C.C.C. (2d) 248
(Alta. Div. Ct.); R. v. P.G. Marketplace and McIntosh
(1979), 51 C.C.C. (2d) 185 (B.C.C.A.); R. v. St. Law-
rence Corp. Ltd., [1969] 3 C.C.C. 263 (Ont. C.A.); R. on
the information of Mark Caswell v. Corporation of City
of Sault Ste. Marie, [1978] 2 S.C.R. 1299.
COUNSEL:
William A. Sangster for applicant.
Peter K. Doody for respondent, Her Majesty
the Queen as represented by the Treasury
Board.
K. Scott McLean for respondent, Bonnie
Robichaud.
Russell G. Juriansz for Canadian Human
Rights Commission.
SOLICITORS:
McLachlan & Sangster, North Bay, Ontario,
for applicant.
Deputy Attorney General of Canada for
respondent, Her Majesty the Queen as repre
sented by the Treasury Board.
Herridge, Tolmie, Ottawa, for respondent,
Bonnie Robichaud.
Russell G. Juriansz, Legal Counsel, Human
Rights Commission, for Canadian Human
Rights Commission.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This application seeks review of
a decision of a Human Rights Review Tribunal
constituted under section 42.1 of the Canadian
Human Rights Act [S.C. 1976-77, c. 33]. The
Court heard at the same time an application by
Her Majesty the Queen, as represented by the
Treasury Board, on file A-279-83 seeking a review
of the same decision. These reasons apply to both
applications.
The matter arises on a complaint filed by the
respondent, Bonnie Robichaud, with the Canadian
Human Rights Commission on January 26, 1980,
alleging sexual harassment, discrimination and
intimidation by the Department of National
Defence and naming the applicant, Brennan, as
'the individual who sexually harassed her. Follow
ing lengthy proceedings held in 1981 and 1982 the
complaint was dismissed [Robichaud et al. v.
Brennan et al. (1982), 82 CLLC 1091], the
Human Rights Tribunal constituted to hear the
complaint having concluded that the allegations
had not been established. Mrs. Robichaud then
appealed to a Human Rights Review Tribunal
[Robichaud v. Brennan et al. (1983), 83 CLLC
16,050] which on February 14, 1983, by a docu
ment purporting to be a decision, disagreed with
the conclusions of the Human Rights Tribunal,
found Brennan guilty of sexual harassment of Mrs.
Robichaud and the Department of National
Defence liable for his actions, and concluded as
follows [at pages 16,053-16,054]:
We are therefore allowing the appeal of Mrs. Robichaud
against both respondents, Dennis Brennan and Her Majesty the
Queen in Right of Canada as represented by The Treasury
Board.
Having found liability on the part of both Mr. Brennan and
his employer, we must still determine the damages to which
Mrs. Robichaud is entitled and determine what other award, if
any, should be made as a consequence of our finding. Since
these issues have never been dealt with by a Canadian Human
Rights Tribunal before and no argument was made on them
either here or below, this portion of our decision will be
reserved for argument.
The first issue requiring determination is wheth
er this is a "decision or order" within the meaning
of subsection 28(1) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10]. If so, the Court
has jurisdiction to entertain these applications. But
if not, the Court does not have jurisdiction and the
applications should be quashed.
The question of what constitutes such a decision
or order was discussed in general terms by Jackett
C.J., in National Indian Brotherhood, et al. v.
Juneau, et al.' and in appendices to the decision of
the Court in The Attorney General of Canada v.
Cylien 2 and In re Anti-dumping Act and in re
Danmor Shoe Co. Ltd. 3 and it has been the subject
of consideration on numerous occasions since those
cases were decided.
In the National Indian Brotherhood case, the
learned Judge said, at pages 77-79:
Probably the most important question that has to be decided
concerning the application of s. 28(1) is the question as to the
I [1971] F.C. 73 (C.A.).
2 [1973] F.C. 1166 (C.A.).
3 [1974] 1 F.C. 22 (C.A.).
meaning of the words "decision or order". Clearly, those words
apply to the decision or order that emanates from a tribunal in
response to an application that has been made to it for an
exercise of its powers after it has taken such steps as it decides
to take for the purpose of reaching a conclusion as to what it
ought to do in response to the application. I should have
thought, however, that there is some doubt as to whether those
words—i.e., decision or order—apply to the myriad of decisions
or orders that the tribunal must make in the course of the
decision-making process. I have in mind decisions such as
(a) decisions as to dates of hearings,
(b) decisions on requests for adjournments,
(c) decisions concerning the order in which parties will be
heard,
(d) decisions concerning admissibility of evidence,
(e) decisions on objections to questions to witnesses, and
(I) decisions on whether it will permit written or oral
arguments.
Any of such decisions may well be a part of the picture in an
attack made on the ultimate decision of the tribunal on the
ground that there was not a fair hearing. If, however, an
interested party has a right to come to this Court under s. 28 on
the occasion of every such decision, it would seem that an
instrument for delay and frustration has been put in the hands
of parties who are reluctant to have a tribunal exercise its
jurisdiction, which is quite inconsistent with the spirit of s.
28(5). A similar question arises where a tribunal proceeds by
stages in reaching a conclusion on the ultimate matter that it
has to decide (compare Smith Kline & French Inter-American
Corp. v. Micro Chemicals Ltd [1968] 1 Ex.C.R. 326, at pages
326 to 330), and I have doubts that s. 28(1) authorizes an
application in such a case before the ultimate decision is
reached. I also have doubts as to whether a refusal by a
tribunal to entertain an application or its decision to embark on
an inquiry is a decision that falls within s. 28(1). It may well be
that, in respect of such matters, the dividing line falls between
decisions of a tribunal before it embarks, and completes, its
processing of a matter, where a party must proceed by one of
the old Crown writ proceedings and build a case upon which
the Court may decide whether he is entitled to relief, and
decisions based on a case which has been made before the
tribunal, where the Court of Appeal may base its decision on
what was or was not done before the tribunal.
I do not pretend to have formulated any view as to what the
words "decision or order" mean in the context of s. 28(1), but it
does seem to me that what is meant is the ultimate decision or
order taken or made by the tribunal under its statute and not
the myriad of incidental orders or decisions that must be made
in the process of getting to the ultimate disposition of a matter.
[Emphasis added.]
In Smith Kline & French Inter-American Cor
poration v. Micro Chemicals Limited, 4 to which
Jackett C.J., referred in the passage cited and in
Hoffmann-La Roche Limited v. Delmar Chemi-
° [1968] 1 Ex.C.R. 326.
cals Limited,' the learned Judge had held to be
nullities appeals launched against decisions of the
Commissioner of Patents granting compulsory
licences but reserving the fixing of the royalty to
be paid by the licensees to be determined later. In
the Hoffmann-La Roche Limited v. Delmar
Chemicals Limited case he said at page 716:
Subsection (4) of section 41 provides for an appeal from a
"decision of the Commissioner under this section". The only
authority conferred on the Commissioner by section 41 to make
a decision is that impliedly conferred by that part of subsection
(3) thereof which requires him "unless he sees good reason to
the contrary" to "grant" a "licence" to any person applying for
one. The balance of this subsection makes it clear that he will
ordinarily include various terms in a licence including a provi
sion for royalty or other consideration. What is contemplated
by that subsection, therefore, is
(a) an application by an applicant for licence, and
(b) a decision by the Commissioner
(i) refusing the application, or
(ii) granting a licence containing appropriate terms and
providing for royalty or other consideration.
In my view, it is that "decision" that is subject to an appeal to
this Court. It is of course true that, before the Commissioner
reaches the point of making a decision disposing of an applica
tion by refusing it or granting a licence, the application will
have given rise to the necessity of his making many decisions,
which are impliedly authorized by subsection (3) of section 41.
He must decide on the procedure to be followed in processing
the application; he must decide whether there will be an oral
hearing; he must decide the disposition of applications to hear
further evidence or argument; and, indeed, he must decide each
of the preliminary questions that arise in the course of for
mulating his decision as to the disposition of the application.
(Compare J. K. Smit & Sons International Limited v. Pack-
sack Diamond Drills Ltd. [1964] Ex. C.R. 226, per Thurlow J.
at pages 230-1, where he discusses a similar problem as to the
meaning of "decision" in section 56(2) of the Trade Marks
Act, chapter 49 of 1952-3.)
In my view, however, Parliament did not contemplate a
whole series of appeals in the course of the hearing of the
rather simple application contemplated by subsection (3) of
section 41. Parliament did not, therefore, contemplate that
there should be an appeal either from the Commissioner's
refusal to hear further evidence and submissions or from his
conclusion on the question whether a licence should be granted.
(The formulation of such conclusion is, of course, only a part of
the process of deciding what disposition to make of the appeal.)
Both these matters can be brought under review in an appeal
from the ultimate decision disposing of the application.
It follows, therefore, that, in my view, the appeal is a nullity
and should be quashed.
5 [1966] Ex.C.R. 713.
Plainly it is this reasoning that Jackett C.J., had
in mind when in the National Indian Brotherhood
case he expressed doubt that subsection 28(1)
authorizes an application at each stage of a pro
ceeding carried out by a tribunal in stages to reach
an ultimate conclusion. The reasoning was carried
further in the appendix to the judgment in the
Danmor Shoe case at pages 34-35:
It is, of course, for Parliament to decide, as a matter of policy,
to what extent the proceedings of administrative tribunals
should be subject to judicial supervision. The task of the courts
is to interpret and implement the statutes whereby Parliament
manifests its decisions. However, it is not entirely irrelevant to
judicial interpretation of a statute that the view adopted is
calculated, and the alternative view is not calculated, to attain
the object of the statute. See section 11 of the Interpretation
Act. (Section 11 of the Interpretation Act, R.S.C. 1970, c. I-23,
reads as follows: 11. Every enactment shall be deemed remedi
al, and shall be given such fair, large and liberal construction
and interpretation as best ensures the attainment of its objects.)
In my view, the object of sections 18 and 28 of the Federal
Court Act is to provide a speedy and effective judicial supervi
sion of the work of federal boards, commissions and other
tribunals with a minimum of interference with the work of
those tribunals. Applying section 11 of the Interpretation Act,
with that object in mind, to the question raised by these section
28 applications, it must be recognized that the lack of a right to
have the Court review the position taken by a tribunal as to its
jurisdiction or as to some procedural matter, at an early stage
in a hearing, may well result, in some cases, in expensive
hearings being abortive. On the other hand, a right, vested in a
party who is reluctant to have the tribunal finish its job, to have
the Court review separately each position taken, or ruling
made, by a tribunal in the course of a long hearing would, in
effect, be a right vested in such a party to frustrate the work of
the tribunal. On balance, it would seem that the object of
section 28 is more effectively achieved by leaving the right to
invoke judicial review to the stage after the tribunal has
rendered its decision. There will then have been no unnecessary
delay in cases where the tribunal has been guilty of no error in
its intermediate positions and rulings and, even when the
tribunal has erred at an intermediate stage, in the vast majority
of cases, such errors will not have affected the ultimate result in
such a way as to warrant invoking judicial review. Admitting
that there may be problems that should be solved judicially at
an intermediate stage, surely no party should have the right to
decide whether a situation has arisen in which that should be
done. It is not without interest, in this connection, that Parlia
ment has given the tribunal the necessary discretion to deal
with such problems. See section 28(4) of the Federal Court Act
which authorizes a tribunal "at any stage of its proceedings" to
refer "any question or issue of law, of jurisdiction or of practice
and procedure" to the Court for "hearing and determination".
[Emphasis added.]
To this may, I think, be added the consideration
that if the view expressed by a tribunal at each
stage of a proceeding carried out in stages may be
regarded as a decision, inconvenience is bound to
arise since its character as a decision will trigger
the commencement of the time limit within which
a review application must be launched.
In none of the three cases to which I have
referred which arose on the meaning of "decision
or order" in subsection 28(1) was the situation
comparable with that in the present case since they
were not instances of proceedings of a tribunal
being carried on by stages.
The situation in Ferrow v. Minister of Employ
ment and Immigration 6 was closer in principle.
That in VIA Rail Canada Inc. v. Butterill, et al.'
was much closer. There a Human Rights Tribunal
had found that the discrimination complained of
had been substantiated and had made several
orders against the employer, VIA Rail, but had
declined to award compensation under paragraph
41(2)(c) for lost wages or under subsection 41(3)
for suffering in respect of feelings or self-respect.
On appeal, a Human Rights Review Tribunal held
the complainants entitled to compensation under
both provisions and indicated the principles on
which it was to be assessed as well as the period of
time in respect of which it was to be computed and
paid but left it to the parties to agree on the
amounts failing which the Review Tribunal would
assess them. A section 28 review application was
brought by the employer at that stage and the
intervenant's motion to quash the application was
dismissed, the Court holding [at page 833, foot
note 1] that the interim decision "clearly disposed
of some of the issues that the Tribunal was
empowered to determine" and was not a mere
expression of opinion that would not be reviewable
under section 28. Close as the situation was to that
in the present case, there is still a marked differ
ence in that the Review Tribunal had concluded
not merely that the complainants were entitled to
compensation but had decided and described what
it was that they were to be compensated for,
leaving only its quantification in amount uncomp
leted. On that basis it was possible on the hearing
of the review application to treat the decision as
6 [1983] 1 F.C. 679 (C.A.).
7 [1982] 2 F.C. 830 (C.A.).
analogous to the entering of a judgment for dam
ages to be assessed. Here there is as yet no indica
tion or finding of what it is that the complainant
Mrs. Robichaud is to be compensated for or of the
basis of the assessment to be made. Nor is there
yet any decision as to what if any other orders
under subsection 41(2) are to be made.
The powers exercisable by a Review Tribunal
are set out in subsection 42.1(6). It provides:
42.1 ...
(6) A Review Tribunal may dispose of an appeal under this
section by
(a) dismissing it; or
(b) allowing it and rendering the decision or making the
order that, in its opinion, the Tribunal appealed from should
have rendered or made.
This authorizes the Review Tribunal to exercise
where appropriate the powers conferred by section
41 on a Human Rights Tribunal. These include:
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
(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 pro
gram, 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 obtain
ing 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.
The effect of this provision as I read it is that
when a Tribunal finds the complaint substantiated,
it may make an order and include in it provisions
of the kind contemplated. A step in the process is
that of considering and determining whether the
complaint is substantiated but by itself that
amounts to no more than a basis on which to
determine whether subsection (1) is applicable so
that the complaint must be dismissed or whether
the powers of the following subsections may be
exercised. The decision or order that may be made
by a Tribunal under section 41 in my opinion is to
dismiss the complaint under subsection (1) or to
make an order for relief of the kind or kinds set
out in the succeeding subsections.
The effect of subsection 42.1(6) as applicable to
the present case, where the Review Tribunal has
concluded that the complaint is substantiated, is to
empower the Review Tribunal to allow the appeal
and make the order that in its opinion the Tribunal
should have made. What this adds is the power to
allow the appeal. In the circumstances of the
present case this means at most that the decision
of the Tribunal dismissing the complaint is over
ruled and set aside. By itself it has no effect to
grant a remedy. Without an order of the kind
contemplated by subsection 41(2) or (3) it would
simply leave matters up in the air. This leads me to
think that the power of paragraph 42.1(6)(b) is
not divisible and that in such a situation the
allowing of an appeal without an order is not a
decision or order. As it seems to me what is
required before there is a reviewable decision or
order is a decision both setting aside the dismissal
under appeal and making the order that is to take
its place. It follows, in my opinion, that what is
attacked by these applications is not a decision or
order within the meaning of subsection 28(1) of
the Federal Court Act and that they should be
quashed.
However, as this is a preliminary issue and the
other members of the Court do not share my view
on it, it becomes necessary to consider the merits
of the application.
While substantial amendments have been made
by chapter 143 of Statutes of Canada 1980-81-82-
83 to the provisions of the Canadian Human
Rights Act relating to cases of this kind, the
provisions applicable when the present case arose
were those of the Act as it was prior to the
amendments, that is to say, S.C. 1976-77, c. 33. It
included:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical hand
icap;....
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
4. A discriminatory practice, as described in sections 5 to 13,
may be the subject of a complaint under Part III and anyone
found to be engaging or to have engaged in a discriminatory
practice may be made subject to an order as provided in
sections 41 and 42.
7. It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
63. (1) This Act is binding on Her Majesty in right of
Canada.
As related to these provisions the complaint, as I
understand it, was that the Crown as Mrs. Robi-
chaud's employer and Brennan had, in the course
of her employment, by sexual harassment, dis
crimination and intimidation, differentiated
adversely in relation to Mrs. Robichaud on the
ground that she was a woman.
THE COMPLAINT AGAINST BRENNAN
The Human Rights Tribunal, Professor R. D.
Abbott, after a lengthy hearing, dismissed the
complaint. In the course of his reasons, which,
including his supplementary reasons, cover some
119 pages, he found that sexual encounters had
occurred between Brennan and Mrs. Robichaud
including propositioning by Brennan of Mrs. Robi-
chaud to have sexual intercourse with him, ques
tioning her about intimate details of her relation
ship with her husband, and extremely intimate
sexual acts between them falling short, however, of
sexual intercourse. At the material times Mrs.
Robichaud was a member of the cleaning staff at a
military establishment. Brennan was a supervisor
with authority over her and, except on the last
occasion, when sexual intercourse was unsuccess
fully attempted, she was on probation as a lead
hand, a position in which she had some supervisory
authority with respect to other cleaners.
Evidence of the encounters had been given by
Mrs. Robichaud. Brennan had denied that any of
them ever occurred. Professor Abbott found Mrs.
Robichaud truthful and reliable with respect to the
occurrence of the encounters. He discredited Bren-
nan. But he was not persuaded by Mrs. Robi-
chaud's evidence that the encounters were not
consensual or that the encounters constituted
sexual harassment of Mrs. Robichaud by Brennan.
It is not without importance to note that while
Mrs. Robichaud gave evidence of efforts by her to
persuade Brennan to desist from importuning her,
she also said that throughout March and April and
until May 24 when she told her doctor and her
husband of what was going on and May 25 when
she told Brennan that it must stop, she had been
trying to handle the situation on her own in the
hope that she could bring Brennan to think that
terminating the relationship was his own idea.
There was also evidence of telephone calls made by
Mrs. Robichaud to Brennan arranging to meet
him, of the meetings that resulted, in which some
of the encounters occurred, and of her waiting for
him to return to the union office when he left it
following Brennan's unsuccessful attempt to have
sexual intercourse with her. On the other hand,
there had also been evidence of Brennan's having
on one occasion told Mrs. Robichaud that he was
her boss and if she left his office, as she had
proposed to do, she would be charged with
disobedience, and of another occasion when she
was on probation when he told her "Without my
support you'll fall flat on your face." Professor
Abbott found that these statements were made but
that Mrs. Robichaud would have had no reason to
fear the first of them and that without knowledge
of the circumstances in which the second was
made it was a true statement from which he would
not imply a threat, veiled or otherwise, to extract
further sexual favours from Mrs. Robichaud.
Professor Abbott summarized his findings as
follows [at page 1099]:
In the present case, what I find is that even if the sexual
approaches by Mr. Brennan to Mrs. Robichaud were unsolicit
ed by the latter, they were not rejected in such a way as to
make it clear to Mr. Brennan that they were unwelcome. No
doubt, Mr. Brennan's approaches were persistent; no doubt,
they were rejected, in the "piece of tail" incident, and were
protested in general terms on several other occasions. The point
is, it cannot be concluded that, until the final protest, May 25,
1979, Mr. Brennan must have known that his advances were
unwelcome. Two rejections or protests consecutively, without
an intervening act by the complainant of voluntary participa
tion in sexual conduct might have convinced me that persist
ence and, therefore, harassment had occurred. Such is not the
case here, so far as the evidence reveals. It was not until June
18, 1979, when Mr. Brennan attempted to engage Mrs. Robi-
chaud in conversation having sexual overtones, following her
protest to him of May 25, without an intervening incident of
voluntary participation by her, that Mr. Brennan must have
known that his advances were unsolicited and unwelcome and
that he was obliged to refrain from any further advances. The
testimony of Mrs. Robichaud clearly reveals that this obliga-
tion was indeed satisfied. No further sexual approaches
occurred.
Furthermore, as I have indicated previously, I cannot con
clude that Mrs. Robichaud's participation in sexual conduct
with Mr. Brennan was secured by his employment-related
threats or promises. That uncoerced conduct stands as a nullifi
cation of the impact that her rejection and protests should
otherwise have.
In other words, Mrs. Robichaud, by her voluntary participa
tion in sexual conduct with Mr. Brennan, such participation not
having been secured improperly, lost the benefit that otherwise
should attach to her early rejection and later protests. Only her
protest of May 25, 1979, and her clear rejection of conversation
with sexual overtones on June 18 can be taken to have signifi
cance. But, in view of her conduct prior to those dates, I cannot
fault Mr. Brennan for his final approach, that of June 18: I
cannot characterize that as improper "persistence" in all the
circumstances. And, when his approach on that date was
rejected, he acted properly by refraining from further ap
proaches. It follows that the conduct of Mr. Brennan in the
sexual encounters with Mrs. Robichaud cannot, in themselves,
be held to constitute conduct prohibited by Section 7(b) of the
Act.
The Human Rights Review Tribunal decision
reverses this conclusion. It cites the portion of
Professor Abbott's reasons finding Mrs. Robi-
chaud's testimony as to the occurrence of the
encounters credible, adds the fact that all but the
last encounter took 'place while Mrs. Robichaud
was on probation as a lead hand, a position never
previously occupied by a woman, and proceeds [at
page 16,051]:
These findings of fact have clearly satisfied the obligation on
the complainant to establish a prima facie case of sexual
harassment. Having done so, the onus shifts to the defendants
to show that for some reason these acts did not constitute
sexual harassment. Counsel for all the parties agreed that the
test to be applied must be an objective one.
The respondent, Mr. Brennan, called no evidence to satisfy
this onus but maintained throughout that none of these events
took place. Even during the cross-examination of Mrs. Robi-
chaud, no questions were directed toward attempting to show
that if in fact these events did take place, they were with her
consent. On the contrary, the only evidence before the Tribunal
was the evidence of the complainant herself in which she stated
quite clearly that she was fearful, that she was intimidated, that
she was continually telling Mr. Brennan that his advances were
not welcome, that she wanted him to stop. We respectfully
disagree with the proposition that the nature of the acts of
fellatio, masturbation, and fondling are of such a highly con-
sensual nature that she could not have engaged in them unless
she was fully consenting thereto.
There is nothing in the nature of these acts that is in itself
contrary to her evidence that she submitted to these encounters
as a result of the intimidation and fear that she had for Mr.
Brennan. Mr. Brennan was in a position of authority over her,
made comments to her such as "If you don't have my support,
you will fall flat on your face", and "I am your boss and I will
charge you with disobedience". We also have other evidence
that he used his authority in a capricious manner to reward and
to punish; for example, the reward he gave the foreman who
gave favourable evidence on his behalf before the Human
Rights Tribunal by permitting him to take the night off without
loss of pay and the punishment he gave out to Rose Grammond
who gave unfavourable evidence against him before the same
Tribunal.
Then, after summarizing and discussing a
number of cases, the Tribunal concluded [at pages
16,052-16,053] :
The Tribunal is persuaded by the facts as found and the law
as stated above. The Tribunal cannot overlook that the facts
clearly showed a pattern of sexual inquiry and innuendo on the
part of Mr. Brennan, and his awareness of Mrs. Robichaud's
vulnerability as a probationer. The cumulative effect was to
create a poisoned work environment for Mrs. Robichaud. In
addition, the facts showed that this pattern of harassment and
abuse of authority extended not only to Mrs. Robichaud but to
at least one other female on the cleaning staff.
Accordingly, we have no hesitation in finding that Mr.
Brennan was guilty of sexual harassment on two grounds:
1) By reason of his failure to rebut the prima facie case
established by Mrs. Robichaud;
2) By reason of his creation of a poisoned work environment;
both contrary to the Canadian Human Rights Act, section
7(b).
The powers of a Review Tribunal on an appeal
under the Canadian Human Rights Act have been
set out earlier in these reasons. Other provisions of
the Act bearing on the nature of such an appeal
are found in subsections 42.1(4) and (5):
42.1...
(4) An appeal lies to a Review Tribunal from a decision or
order of a Tribunal on any question of law or fact or mixed law
and fact.
(5) A Review Tribunal shall hear an appeal on the basis of
the record of the Tribunal whose decision or order is appealed
from and of submissions of interested parties but the Review
Tribunal may, if in its opinion it is essential in the interests of
justice to do so, receive additional evidence or testimony.
In the present instance no additional evidence was
received.
It will be observed from the passages I have
cited that the substance of what the Review Tri
bunal appears to have done is to reverse the infer
ence of fact drawn by the Human Rights Tribunal
that Mrs. Robichaud's participation in the sexual
encounters had been with her consent and to sub
stitute a finding that such participation was at
least to some extent coerced. That is a finding
which, as it appears to me, was open on the
evidence and one that it was within the power of
the Review Tribunal to make. It is no doubt true
that in a situation of this kind where no evidence
in addition to that before the Human Rights Tri
bunal was before the Review Tribunal the latter
should, in accordance with the well-known princi
ples adopted and applied in Stein et al. v. The
Ship `Kathy K", 8 accord due respect for the view
of the facts taken by the Human Rights Tribunal
and, in particular, for the advantage in assessing
credibility which he had in having seen and heard
the witnesses. But, that said, it was still the duty of
the Review Tribunal to examine the evidence and
substitute its view of the facts if persuaded that
there was palpable or manifest error in the view
taken by the Human Rights Tribunal. The Review
Tribunal decision makes no reference to this prin
ciple but it seems to me to be apparent from the
way in which the Review Tribunal dealt with the
matter that it was persuaded that there was pal
pable error in the conclusion that the sexual
encounters described did not amount to sexual
harassment. That too is, in my opinion, a view
which on the facts as found it was open to the
Review Tribunal to take. It seems to me that it
was open to the Tribunal on the evidence to think
that the failure of Brennan to achieve sexual inter
course or male orgasm in any of the encounters
served to demonstrate and confirm Mrs. Robi-
chaud's evidence of her reluctance to participate
and her objections to what was going on and that
he knew or ought to have known that she was not
freely participating.
8 [1976] 2 S.C.R. 802; 62 D.L.R. (3d) 1.
It may be well to note at this point that the
proceeding in this Court under section 28 of the
Federal Court Act is not a further appeal on the
facts. It is a review proceeding on the legality of
what has been done. As there was in the record
evidence on which the findings of the Review
Tribunal could be made they can be set aside only
if the Review Tribunal erred in law in making
them.
Counsel for Brennan pointed to the statement of
the Review Tribunal as to the onus of proof shift
ing to him as an error of law and to the statement
that in the cross-examination of Mrs. Robichaud
no questions were directed towards attempting to
show that if in fact these events took place they
were with her consent as being an unsupportable
finding of fact.
I do not regard what the Tribunal said about the
onus of proof shifting as being a statement of law.
In its context it appears to me to mean only that
the evidence for the complainant was so strong
that in the absence of evidence to the contrary her
case was made out. That, in my view, is how the
finding (1) at the end of the passage cited should
also be interpreted. Neither sexual harassment nor
unlawful discrimination contrary to paragraph
7(b) of the Act consists in failure to bring evidence
to rebut a prima facie case but I do not think the
meaning of the Review Tribunal is put in doubt by
the way in which the conclusion is expressed.
Moreover, while counsel was able to point to
cross-examination of Mrs. Robichaud directed to
the question of consent, the extent of such ques
tioning was not significant; indeed it was more
significant for what was not addressed or ques
tioned than for what was. No counsel elicited
evidence of what sort of physical conduct of the
parties preceded the intimate sexual action in the
encounters described by Mrs. Robichaud. I would
interpret the statement of the Review Tribunal
that there had not been cross-examination as
meaning that nothing brought out in the cross-
examination persuaded them that Mrs. Robichaud
was fully or freely consenting.
In any event, in my view, the statement of the
Review Tribunal that there had not been cross-
examination is not a finding of fact on which the
decision is based within the meaning of paragraph
28(1)(c) of the Federal Court Act. Nor is it a
misdirection or error as to the applicable law.
There remains the question whether the sexual
harassment found to have occurred is a discrimina
tory practice within the meaning of the Act, by
reason of it being an adverse differentiation in the
course of Mrs. Robichaud's employment on the
ground of sex. The language of section 7 of the
Act, though broad, does not lend itself easily to
embrace a situation of this kind and I do not think
it is desirable or appropriate to endeavour to define
its limits. It is sufficient for the purposes of this
case to say that I think the language is broad
enough to cover the situation in the present case of
a superior in the work place exercising his position
and authority over a subordinate of the other sex,
who was in a vulnerable position, to intimidate her
and secure participation in his sexual overtures
and conduct. Though the harassment was by a
supervisor rather than by an employer the case
appears to me to be similar in principle to that
referred to in Cherie Bell and Anna Korczak v.
Ernest Lacks and The Flaming Steer Steak
House [at page D/156]: 9
Subject to the exception provided in Section 4(6), discrimi
nation based on sex is prohibited by The Code. Thus, the
paying of a female person less than a male person for the same
job is prohibited, or dismissing an employee on the basis of sex
is also prohibited. But what about sexual harassment? Clearly
a person who is disadvantaged because of her sex is being
discriminated against in her employment when employer con
duct denies her financial rewards because of her sex, or exacts
some form of sexual compliance to improve or maintain her
existing benefits. [Emphasis added.]
9 (1980), 1 C.H.R.R. D/155 (Ont. Board of Inquiry).
I also think, as did the Review Tribunal, that
Brennan's objectionable conduct can be regarded
as having destroyed or damaged the normal work
place relationship that otherwise would have con
tinued between Brennan and Mrs. Robichaud and
thus made her working conditions worse for her
because she was a woman. But this, as I see it, is
but a manifestation of an adverse effect produced
by the unlawful discriminatory conduct.
The application of Brennan accordingly fails
and I would dismiss it. I should add that the
Human Rights Tribunal found in Brennan's favour
on the allegation of intimidation and discrimina
tion in the imposition of adverse employment con
ditions on Mrs. Robichaud following her allegation
of sexual harassment to Captain Adlard on June
28, 1979, on the ground that such imposition was
not based on sex. As the decision of the Review
Tribunal does not deal with this finding in my view
it stands and is not in issue on either of these
applications.
THE COMPLAINT AGAINST THE CROWN
The findings of the Human Rights Tribunal
with respect to the complaint against the Crown
are summarized in the following excerpts.
First, with respect to the complaint of sexual
harassment, after describing the meeting on June
28, 1979, with Captain Adlard and Brennan when
Mrs. Robichaud raised the matter, Professor
Abbott said [at page 1101]:
It is quite apparent that this was the first opportunity for
anyone superior in the hierarchy to Mrs. Robichaud other than
Mr. Brennan to know that she was alleging sexual harassment
against Mr. Brennan. She gave no details at this time to Capt.
Adlard of the nature of the incidents which she perceived as
constituting harassment. At that point in time, in the light of
what I have already determined, the encounters between Mrs.
Robichaud and Mr. Brennan did not, in fact or law, constitute
an infringement of Section 7(b) of the Act so that, even if she
had provided Capt. Adlard with all the details to which she
testified at the hearings by me, Capt. Adlard would have been
justified in taking the stance he did; even more so, considering
the generality of Mrs. Robichaud's accusation, and considering
her admission that the encounters with Mr. Brennan had
probably stopped. Capt. Adlard was justified in attempting to
gloss over the matter, at the same time warning both that
whatever relationship had existed was to cease. I cannot now, in
retrospect, impose on him a higher duty of enquiry or action. It
appears also that Capt. Adlard and others in Base management
took steps thereafter to separate Mrs. Robichaud and Mr.
Brennan geographically and they also, subsequently, arranged
that Mrs. Robichaud's chain of command was to be through
her Area Foreman directly to the Assistant Base Administra
tive Officer, bypassing Mr. Brennan. These moves were a
reasonable response in the circumstances. In view of this, and
other circumstances which I infer from the evidence, I am
unwilling to find that the employer must be deemed to have
condoned Mr. Brennan's alleged sexual harassment (which I
have found not to have been such) or, it follows, to be liable for
his conduct in any other way, vicariously or indirectly.
Next, with respect to the letters of complaint, he
concluded [at page 1101]:
Certainly, I cannot fault the employer. Clearly, no member
of Base management other than Mr. Brennan is subject to any
suspicion of having instigated the letters and petitions against
Mrs. Robichaud. Indeed, Base management disassociated itself
from those letters and petitions when in August, 1979, through
the grievance procedure which Mrs. Robichaud resorted to, the
letters and petitions, along with a "memorandum of shortcom
ings" relating to her were torn up in the presence of herself and
her union representative.
With respect to the changes in Mrs. Robi-
chaud's duties, he found [at page 1102]:
These changes in Mrs. Robichaud's employment all came
soon after her complaint to Capt. Adlard on June 28, 1979.
They spanned a period of several weeks and were the subject of
a number of grievances filed by Mrs. Robichaud pursuant to
Section 90 of the Public Service Staff Relations Act in late
July, 1979. Most of those grievances were redressed through
the grievance process, in favour of Mrs. Robichaud. I can find
no evidence that the changes complained of were motivated by
an intention on the part of the employer, as distinct from Mr.
Brennan, to differentiate adversely against Mrs. Robichaud
because she was a woman or because she had complained about
Mr. Brennan. Nor do the circumstances of the changes provide
any foundation for a conclusion that the employer in any way
condoned Mr. Brennan's allegedly sexually harassing conduct.
Steps were taken to remedy the situation when Mrs. Robi-
chaud's dissatisfaction became known to higher management
and the matter should, as against the employer, be considered
closed.
I disregard, in addition, Mrs. Robichaud's complaints
regarding her employment treatment after August, 1979, more
particularly, the circumstances of her assignment to, and re
moval from, the cleaning of the Base elementary school in the
autumn of 1980 (transcript, page 688 and following). I can find
here no indication that she was being discriminated against
because of her gender and certainly no indication that she was
being discriminated against because of her rejection of Mr.
Brennan's advances. It may appear that she was treated differ
ently, and adversely, because she had, by then, complained to
the Canadian Human Rights Commission. However, there is
strong reason to infer, from the testimony of the school princi
pal, Mrs. Wardlaw (whom I found to be entirely credible) that
Mrs. Robichaud was preoccupied with, and vociferous about,
the nature of her complaints against Mr. Brennan and that this
was what precipitated her differential treatment, if such there
was. The motivation for her later treatment is what is impor
tant, and I cannot find that that motivation was improper.
On the whole, therefore, I cannot hold the employer (exclud-
ing Mr. Brennan) in any way responsible for adverse differen
tial treatment of Mrs. Robichaud after her complaints about
Mr. Brennan became known to Base management. The employ
ment changes in respect of her were motivated properly and
were not retaliatory or evidence of condonation of Mr. Bren-
nan's conduct. Where there was legitimate reason for her to
complain, as in respect of the letters and petitions complaining
about her, or as in respect of the nature of her work and her
supervision, reasonable steps were taken to remedy the matter.
I will, not fall into the logical fallacy of assuming "after this,
therefore because of this", i.e., to assume that changes in Mrs.
Robichaud's employment to the extent that Base management
was responsible for them, must have been caused by her
rejection of Mr. Brennan's advances and by her complaint to
Capt. Adlard and the Commission. The causal connection has
not been established. She was not discriminated against
because of her gender. Her complaint against the employer
must, accordingly, be dismissed.
The Review Tribunal dealt with the complaint
against the Crown in the following passage [at
page 16,053]:
We must now determine the question of the liability of the
employer, the Department of National Defence (The Treasury
Board) for the actions of its employee, Mr. Brennan. In this
regard, we note that Mr. Brennan was the senior civilian
managerial employee on the Base. The authorities provided to
this Tribunal make it quite clear that the liability of the
employer for its supervisory personnel is a strict liability.
The Tribunal was referred to the Bundy case, supra, at page
943 where it was held that:
an employer is liable for discriminatory acts committed by
supervisory personnel ... and there is obviously no dispute that
the men who harassed Bundy were her (superiors).
This case, however, goes further to point out at page 947,
that:
an employer may negate liability by taking immediate and
appropriate corrective action when it learns of any illegal
harassment...
In the Bell case, supra, at page 156, the Tribunal was
referred to this statement:
The next issue to be decided is the extent of liability under
the Code. If a foreman or supervisor discriminates because of
sex, will the company be liable? The law is quite clear that
companies are liable where members of management, no
matter what their rank, engage in other forms of discriminatory
activity.
Mr. Shime goes on to say that:
Thus I would have no hesitation in finding the corporate
Respondent liable for a violation of the Code if one of his
officers engaged in a prohibited conduct ...
The Review Tribunal considered the case of Oram and
McLaren v. Pho (B.C. Board of Inquiry, 1975). The case
involved a complaint against a restaurant owner on refusal of
service because of the length of the Complainant's hair. It was
contended that nothing happened to the Complainant on the
evening in question which was attributable to Mr. Pho, the
owner. At page 24, the following statement occurs:
Dealing with this submission it can be seen immediately that
if given effect it would provide a convenient loophole through
which the owners and managers of public houses and other
establishments which offer services or facilities customarily
available to the public could escape responsibility for violations
of the Code by having an agent or servant effect the denial and
enforcing the discriminatory policy without doing so personally.
Fortunately the common law of this country is not so short
sighted. The law provides that a master is responsible for the
wrongful act done by his servants in the course of his
employment.
In this case, there was no clearly defined policy against
sexual harassment which had been communicated to the
employees. Secondly, when the complaints were brought to the
attention of Mr. Brennan's superiors, no investigation was
conducted by the employer to determine the truth or otherwise
of the allegations and in particular no investigation was
requested or made pursuant to the Financial Administration
Act, Section 10. On the contrary, steps were taken to remove
Mrs. Robichaud from the normal routine of a lead hand. She
was ultimately transferred to the so-called "punishment block"
on the barracks where her duties were severely curtailed. This
treatment of Mrs. Robichaud would give the impression to the
other employees on the base that she had fallen out of favour
with the people in charge of personnel. There was certainly no
indication that Mr. Brennan was disfavoured. There was the
orchestrated attempt to discredit Mrs. Robichaud after she had
filed her complaint by the flood of letters and petitions against
her, a circumstance which should have prompted great suspi
cion and therefore closer inquiry. Finally, we find it particular
ly irresponsible on the part of the employer that the activities of
Mr. Brennan in relation to the personnel who were called to
testify before the Tribunal were not monitored so as to prevent
any coercion or intimidation of them by Mr. Brennan.
Two points should be noted. First, what is being
addressed by the Review Tribunal is the liability of
the Crown for the conduct of Brennan, not the
conduct of anyone else in the employ of the
Crown. Second, the Review Tribunal does not
purport to reverse the findings of the Human
Rights Tribunal that it was not established that
Brennan was the instigator of what is referred to
as "the orchestrated attempt to discredit Mrs.
Robichaud after she had filed her complaint by the
flood of letters and petitions against her." Nor
does the Review Tribunal purport to reverse
Professor Abbott's conclusion that the changes in
Mrs. Robichaud's duties and her assignment to
what was referred to as the "punishment block",
all of which occurred after her sexual encounters
with Brennan had ceased, did not constitute dis
crimination on the basis of sex.
In my opinion, the decision of the Review Tri
bunal is not sustainable and should not be allowed
to stand.
First, it is based on the concept that under the
Canadian Human Rights legislation applicable to
this case the Crown is strictly liable for the actions
of its supervisor, Brennan. In my opinion there is
no basis in law for applying such a concept. The
applicable law is that established by the Act 10 and
there is no federal common law or federal civil law
to supply such a concept in its interpretation.
What the statute does is to declare certain types of
discrimination to be illegal and to provide in sec
tion 4 that such discrimination may be the subject
of a complaint under Part III of the Act and that
"anyone found to be engaging or to have engaged
in a discriminatory practice may be made subject
to an order as provided in sections 41 and 42.""
1° See Seneca College of Applied Arts and Technology v.
Bhadauria, [1981] 2 S.C.R. 181; 124 D.L.R. (3d) 193.
11 The reports of Barnes v. Costle, 561 F.2d 983 (D.C. Cir.
1977), and Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981),
while of interest as to what constitutes sexual discrimination,
give no indication of the presence in the United States legisla
tion of anything comparable to section 4 of the Canadian Act.
To be subject to the making of an order under
this provision a person must be engaging or must
have engaged in a prohibited discriminatory prac
tice. In my opinion the section means that if a
person has personally engaged in a discriminatory
practice or if someone else does it for him on his
instructions he may be subjected to an order. But
nothing in the wording purports to impose on
employers an obligation to prevent or to take
effective measures to prevent employees from
engaging in discriminatory practices for their own
ends. And I see nothing in the section or elsewhere
in the statute to say that a person is to be held
vicariously or absolutely or strictly liable in
accordance with common law tort or criminal law
principles for discrimination engaged in by some
one else, whether an employee or not. Compare Re
Nelson et al. and Byron Price & Associates Ltd. 12
It appears to me that under the applicable legis
lation in the case of a corporation the authoriza
tion that will attract liability must come from the
director level. In the case of the Crown, I see no
basis for concluding that the conduct of public
servants or officials lower than that of the public
official or body under whose authority and man
agement the public operation is carried on, in this
case the Minister of National Defence or the
Treasury Board, would engage the liability of the
Crown. Nothing in the findings of either Tribunal
or in the record suggests that Brennan had author
ity from such sources to harass Mrs. Robichaud.
Nor is there any basis for thinking that anyone in
such a position or indeed in any position senior to
that of Brennan authorized or even knowingly
overlooked, condoned, adopted or ratified Bren-
nan's actions in harassing Mrs. Robichaud.
This alone is a sufficient basis for setting aside
the Review Tribunal decision. But I should not
part with the case without mentioning a further
reason why in my opinion it should not be allowed
12 (1981), 122 D.L.R. (3d) 340 (B.C.C.A.).
to stand even if a rule of strict liability applied. It
is apparent that the Review Tribunal has taken
into account in reaching its conclusion the failure
of the Crown to investigate more thoroughly Mrs.
Robichaud's complaint and the source of the com
plaints against Mrs. Robichaud, that the change in
her work assignment and transfer to the so-called
"punishment block" would give an impression that
she was disfavoured, that Brennan was not dis
favoured and that Brennan's activities in relation
to witnesses were not monitored. None of these is
in itself an adverse distinguishing by the Crown or
anyone else against Mrs. Robichaud on the basis
of sex. Most of them are ex post facto matters
having no bearing on the issue and, in my opinion,
none of them is relevant to the question whether
the Crown as Brennan's employer was liable for
the consequences of Brennan's actions when they
occurred. What is relevant, in my view, is what
Professor Abbott found and the Review Tribunal
did not reverse.
I would set aside the decision of the Review
Tribunal in so far as it purports to hold the Crown
liable and refer the matter back to the Review
Tribunal for disposition of the appeal of Mrs.
Robichaud on the basis that the complaint against
the Crown,is not sustainable.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: I cannot see any material distinction
between the decision here under attack and the
decision in question in VIA Rail Canada Inc. v.
Butterill, et al." which we held to be a decision
within the meaning of section 28 of the Federal
Court Act. For that reason, I do not share the view
expressed by the Chief Justice that this section 28
application is directed against something that is
not a decision within the meaning of that section.
However, on all the other points raised by this
application, I am in complete agreement with the
Chief Justice. For the reasons that he gives, I
13 [1982] 2 F.C. 830 (C.A.).
would, therefore, dispose of the application as he
suggests.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: These two applications for
review under section 28 of the Federal Court Act
raise the question of whether sexual harassment
can constitute discrimination based on sex and the
consequent question as to the liability of an
employer for discrimination practised by a supervi
sor against another employee. Both questions are
new ones to this Court and, with a single exception
in each case, to Canadian Courts generally.
However, I must first turn to an initial question
of a procedural nature arising out of subsection
28(1) of the Federal Court Act, which gives "the
Court of Appeal ... jurisdiction to hear and deter
mine an application to review and set aside a
decision or order ... made by or in the course of
proceedings before a federal board, commission or
other tribunal . .." (Emphasis added.)
The matter of which review is here sought is an
action taken by a Human Rights Review Tribunal
on February 14, 1983, which the Review Tribunal
describes as follows [at pages 16,053 - 16,054]:
We are therefore allowing the appeal of Mrs. Robichaud
against both respondents, Dennis Brennan and Her Majesty the
Queen in Right of Canada as represented by The Treasury
Board.
Having found liability on the part of both Mr. Brennan and
his employer, we must still determine the damages to which
Mrs. Robichaud is entitled and determine what other award, if
any, should be made as a consequence of our finding. Since
these issues have never been dealt with by a Canadian Human
Rights Tribunal before and no argument was made on them
either here or below, this portion of our decision will be
reserved for argument. [Emphasis added.]
The words I have emphasized in this disposition,
as well as the fact that the reasons quoted from are
headed "Decision of Review Tribunal", show
clearly that to the Review Tribunal itself the
action taken was considered to be a "decision".
Nevertheless, this self-characterization does not
necessarily decide the issue.
The disposition of an appeal from a Human
Rights Tribunal to a Review Tribunal is governed
by subsection 42.1(6) of the Canadian Human
Rights Act, 1977:
42.1.. .
(6) A Review Tribunal may dispose of an appeal under this
section by
(a) dismissing it; or
(b) allowing it and rendering the decision or making the
order that, in its opinion, the Tribunal appealed from should
have rendered or made.
Its power is to allow an appeal and to render the
decision the Tribunal should have rendered. Clear
ly, the Review Tribunal here, in not proceeding
either to the assessment of damages or even to the
determination of "what other award, if any, should
be made", is exercising only part of its power of
decision-making. Can such an incomplete decision
found a review by this Court?
Counsel for the respondents relied on the deci
sion of this Court in VIA Rail Canada Inc. v.
Butterill, et al., [1982] 2 F.C. 830 (C.A.), in
which an interim decision of a Review Tribunal
was held to be a decision or order under section 28
of the Federal Court Act in that it " `clearly
disposed of some of the issues that the Tribunal
was empowered to determine' and was not a mere
expression of opinion that would not be reviewable
under section 28" (page 833, footnote 1). This case
is an authority for the proposition that a disposi
tion that finally disposes of less than all of the
issues before a tribunal can be a decision under
section 28. However, the decision of the Review
Tribunal in the VIA Rail case was much more
specific than that of the Review Tribunal here: in
that case the initial Tribunal ordered VIA to
review its visual standards for employment and to
offer positions to the three complainants but not to
pay compensation; the Review Tribunal reversed
the original Tribunal on the question of compensa
tion, holding that compensation was necessary
under two separate provisions of the legislation; it
went on to discuss the compensation period and
the principles for ascertaining the quantum, but
did not fix an amount for any of the three complai-
nants. All that remained in that case was the
determination of the quantum.
Here the options for disposition open to the
Review Tribunal are indicated by the powers of a
Tribunal under the Canadian Human Rights Act,
1977 which under paragraph 42.1(6)(b) also
become those of a Review Tribunal. Section 41
provides as follows:
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
(2) If, at the conslusion 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 pro
gram, 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 obtain
ing 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.
The Review Tribunal here has not decided even
the basis on which damages should be awarded to
Mrs. Robichaud, whether they are, e.g. to be
compensatory under subsection 41(2) or for
injured feelings and self-respect under paragraph
41(3)(b), let alone what other award, if any,
should be made under subsection 41(2). The result
of the administrative process here is therefore
more incomplete than in the VIA Rail case.
The best analysis of the relevant policy consider
ations in play is that of Jackett C.J. in In re
Anti-dumping Act and in re Danmor Shoe Co.
Ltd., [ 1974] 1 F.C. 22 (C.A.), at page 34:
In my view, the object of sections 18 and 28 of the Federal
Court Act is to provide a speedy and effective judicial supervi
sion of the work of federal boards, commissions and other
tribunals with a minimum of interference with the work of
those tribunals. Applying section 11 of the Interpretation Act,
with that object in mind, to the question raised by these section
28 applications, it must be recognized that the lack of a right to
have the Court review the position taken by a tribunal as to its
jurisdiction or as to some procedural matter, at an early stage
in a hearing, may well result, in some cases, in expensive
hearings being abortive. On the other hand, a right, vested in a
party who is reluctant to have the tribunal finish its job, to have
the Court review separately each position taken, or ruling
madè, by a tribunal in the course of a long hearing would, in
effect, be a right vested in such a party to frustrate the work of
the tribunal.
In the view of Jackett C.J., proceedings should not
be allowed to be frustrated by premature chal
lenges, nor rendered abortive by continuing beyond
the point at which judicial guidance becomes
necessary. In the end, what is always to be protect
ed is the integrity of the administrative proceed
ings.
Allowing judicial review to take place in the
present circumstances would be to uphold the
integrity of the administrative proceedings here
against both potential dangers outlined by Jackett
C.J. The Review Tribunal thought it appropriate
to finalize part of its task at this point, thereby
allowing the important matters on which it had
reached final decision to be reviewed judicially,
before proceeding with the consequential ques
tions. Indeed, we were told by counsel for the
Canadian Human Rights Commission in the
course of argument that such pauses had come to
be the practice of tribunals, following the decision
of this Court in the VIA Rail case. The Review
Tribunal action here was entitled "decision",
whereas the determination upheld by this Court as
sufficiently final in the VIA Rail case was entitled
"interim decision". This style of decision-making
is in fact analogous to the practice of arbitrators in
labour relations matters. As this Court recently
put it in striking down another challenge to
administrative action in Turenko v. Royal
Canadian Mounted Police Commissioner (1984),
55 N.R. 314 (F.C.A.), [at page] 315, "Surely the
law should not so limit the flow of life as to require
it to fit a procrustean bed of unnecessary formali
ties. Even the administrative process must be sub
jected only to reasonable requirements."
In the absence of authority to the contrary, I
must follow the commandment of statutory inter
pretation laid down by section 11 of the Interpre
tation Act [R.S.C. 1970, c. I-23]:
11. Every enactment shall be deemed remedial, and shall be
given such fair, large and liberal construction and interpreta
tion as best ensures the attainment of its objects.
I therefore hold that the partial decision by the
Review Tribunal here, since it is clearly intended
to be a final decision on the issues considered, is a
reviewable decision under subsection 28(1) of the
Federal Court Act. This is not to say that any
intermediate decision of a tribunal qualifies for
review under subsection 28(1), but rather that a
clearly final decision on all issues short only of the
remedy or relief should so qualify, since by such a
decision the substantive question before the tri
bunal is finally disposed of. At this stage, the
decision is sufficiently analogous to a judgment or
order.
This preliminary matter out of the way, the
question for decision is whether sexual harassment
is a discriminatory practice under the Canadian
Human Rights Act. That Act has recently been
amended so to provide explicitly, but at the rele
vant time there was no such provision. There were
nevertheless decisions by human rights and labour
tribunals across Canada, and by the Federal Court
of Appeals (Washington, D.C. Circuit) on similar
legislation, that sexual harassment was caught by
such legislation. An Ontario Divisional Court has
recently come to the same conclusion, (In the
Matter of an Appeal from a Board of Enquiry
under the Ontario Human Rights Code, etc. Com
modore Business Machines Ltd., and Rafael
DeFilippis v. The Minister of Labour for Ontario
et al., judgment dated November 22, 1984, A-279-
83, not yet reported, but that Court's reasoning is
too summary to be of assistance here.
The relevant provisions of the Canadian Human
Rights Act, 1977 are as follows:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical hand
icap; ...
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
4. A discriminatory practice, as described in sections 5 to 13,
may be the subject of a complaint under Part III and anyone
found to be engaging or to have engaged in a discriminatory
practice may be made subject to an order as provided in
sections 41 and 42.
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.
The most obvious discriminatory practices,
sexual or otherwise, appear to be characterized by
randomness and generality. For instance, a racial
discriminator against one black presumably would
behave similarly towards any other black, and
indeed towards all blacks. So with sexual discrimi-
nation one might expect random and general dis
crimination against women.
Sexual harassment, on the other hand, is specific
to one, or at least to less than all, members of the
sex. It singles out, for example, a particular man
or woman, or several, for special (i.e., adverse)
treatment. At first look, it may appear to be the
very antithesis of sexual discrimination.
However, the randomness and generality often
associated with discriminatory practices are usual
ly presumed rather than established: the dis-
criminator has actually acted against only one
member of a class, and the rest is an inference.
More important, randomness and generality are
not required by the Canadian Human Rights Act
to found a discriminatory practice. Section 7 of the
Act provides that a discriminatory practice is
directed against "any individual" or "an
employee". The requirement is one of adverse
differentiation based on sex, not of randomness or
generality.
Canadian human rights tribunals have consist
ently held that sexual harassment can amount to
sexual discrimination. The first Board of Inquiry
so to hold, Cherie Bell and Anna Korczak v.
Ernest Ladas and The Flaming Steer Steak
House (1980), 1 C.H.R.R. D/155, at page D/156,
(O. B. Shime, Q.C.), under the similar provisions
of the Ontario Human Rights Code, [R.S.O. 1980,
c. 340] analyzed the issue this way:
But what about sexual harassment? Clearly a person who is
disadvantaged because of her sex is being discriminated against
in her employment when employer conduct denies her financial
rewards because of her sex, or exacts some form of sexual
compliance to improve or maintain her existing benefits. (There
is no intention to deal with the implications of bisexual conduct
in the circumstances of this case. It is intended to deal with
harassment of female employees by a male authority and the
principles equally apply to the harassment of a male employee
by a female in authority as well as homosexual exploitations.)
The evil to be remedied is the utilization of economic power or
authority so as to restrict a woman's guaranteeed and equal
access to the work-place, and all of its benefits, free from
extraneous pressures having to do with the mere fact that she
is a woman. Where a woman's equal access is denied or when
terms and conditions differ when compared to male employees,
the woman is being discriminated against.
1389 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 environ
ment. There is no reason why the law, which reaches into the
work-place so as to protect the work environment from physi
cal or chemical pollution or extremes of temperature, ought
not protect employees as well from negative, psychological and
mental effects where adverse and gender directed conduct
emanating from a management hierarchy may reasonably be
construed to be a condition of employment.
1390 The prohibition of such conduct is not without its dangers.
One must be cautious that the law not inhibit normal social
contact between management and employees or normal discus
sion between management and employees. It is not abnormal,
nor should it be prohibited activity for a supervisor to become
socially involved with an employee. An invitation to dinner is
not an invitation to a complaint. The danger or the evil that is
to be avoided is coerced or compelled social contact where the
employee's refusal to participate may result in a loss of
employment benefits. Such coercion or compulsion may be
overt or subtle, but if any feature of employment becomes
reasonably dependent on reciprocating a social relationship
proffered by a member of management, then the overture
becomes a condition of employment and may be considered to
be discriminatory.
1391 Again, The Code ought not to be seen or perceived as
inhibiting free speech. If sex cannot be discussed between
supervisor and employee neither can other values such as age,
colour or creed, which are contained in The Code, be discussed.
Thus, differences of opinion by an employee where sexual
matters are discussed may not involve a violation of The Code;
it is only when the language or words may be reasonably
construed to form a condition of employment that The Code
provides a remedy. Thus, the frequent and persistent taunting
by a supervisor of an employee because of his or her colour is
discriminatory activity under The Code and similarly, the
frequent and persistent taunting of an employee by a supervi
sor because of his or her sex constitutes discriminatory activity
under The Code.
1392 However, persistent and frequent conduct is not a condi
tion for an adverse finding under The Code because a single
incident of an employee being denied equality of employment
because of sex is also prohibited activity.
A Review Tribunal under the Canadian Human
Rights Act, Jane Kotyk and Barbara Allary v.
Canada Employment and Immigration Commis
sion and Jack Chuba (1983), unreported, upheld
by this Court, sub nom. Chuba v. Canadian
Human Rights Tribunal, November 7, 1984, File
A-193-84, [not yet reported] without argument on
this issue, carried the analysis further:
There is a number of theoretical permutations and combina
tions that could give rise to sexual harassment. For example, a
male manager may commit heterosexual sexual harassment
upon a female employee or homosexual sexual harassment upon
a male employee. Similar combinations can be imagined if the
roles were reversed and the manager were female and the
employee male. Indeed, the harassment may be both gender-
related and based upon sexual propensity as where a homosexu
al employer exploits a homosexual employee.
The central problem in all of these situations is that a
specific employee (whether male or female and whether hetero
sexual or homosexual) is the subject of harassment and there
fore has had imposed on him or her, conditions of employment
which were not inflicted upon employees of the opposite gender.
The target of the harassment suffers disparate treatment based
on sex. As was noted in Bundy v. Jackson (1981) 641 F. 2d 934
at 942 (U.S. Court of Appeals):
.. In each instance the question is one of but-for causation:
would the complaining employee have suffered the harass
ment had he or she been of a different gender?... Only by
reductio ad absurdum could we imagine a case of harass
ment that is not sex discrimination - where a bisexual
supervisor harasses men and women alike."
Nor is it an answer by an employer to argue that a manager
is discriminating against a woman not because of her sex but
because he finds her sexually attractive and consequently, is not
harassing all women in his employment but merely this particu
lar woman. In Bundy v. Jackson, supra, at p. 942, the Court
indicated that
"sex discrimination ... is not limited to disparate treatment
founded solely or categorically on gender. Rather discrimina
tion whenever sex is for no legitimate reason a substantial
factor in the discrimination."
Accordingly, the crux of the matter is whether the basis for
the specific discrimination was sex related. If so, there is
discrimination by reason of sex even though other employees of
the same gender are not subjected to such conduct. One
commentator put the principle aptly as follows:
"Whether or not the attention is directed solely at one
individual, so long as it is sex based, it is discriminatory.
Womanhood is the sine qua non of the sexual harassment.
But for her femaleness, the victim of sexual harassment
would not have been propositioned; she would not have been
requested to participate in sexual activity if she were a man."
(Constance Backhouse, Case Comment, (1981)10 University
of Western Ontario Law Review 141, at 143).
In this instant case there was no difference
between the two Tribunals on the law as it related
to sexual harassment. The original Tribunal held
that section 7 of the Canadian Human Rights Act
prohibited sexual harassment, but found on the
facts that there was no discrimination. The Review
Tribunal had an identical view of the law but
reached an opposite conclusion in relation to the
facts.
It is not, however, correct to say that the Review
Tribunal rejected the initial Tribunal's view of the
facts. The first Tribunal accepted the credibility of
Mrs. Robichaud's testimony as to the fact of the
sexual encounters but drew a conclusion which it
admitted to be "not based on the evidence in this
case but .. . on . .. assessment of human motiva
tion in sexual conduct", viz. that "Mrs. Robichaud
engaged with Mr. Brennan, according to her tes
timony, in sexual activities in which she could not
have engaged unless she was fully consenting
thereto". It was this inference from the facts that
was rejected by the Review Tribunal [at page
16,0511:
We respectfully disagree with the proposition that the nature of
the acts of fellatio, masturbation, and fondling are of such a
highly consensual nature that she could not have engaged in
them unless she was fully consenting thereto.
Mrs. Robichaud began working for the Depart
ment of National Defence at the Air Defence
Command base in North Bay as a cleaner in 1977.
She succeeded in becoming the first woman at the
base to win the position of lead hand, and was on
probation in that position from November 20,
1978, to May 20, 1979. It was during that period,
in March, April and May, 1979, that the sexual
harassment complained of took place.
The Tribunal found that the applicant Brennan
first asked Mrs. Robichaud for sexual intercourse
about March 16 when she came to his office at his
request during working hours. From that time on,
Mrs. Robichaud testified, Brennan was constantly
asking for sexual favours and also asking her
intimate questions relating to her personal sex life.
The first sexual incident occurred on April 6 and
from then on Brennan called her repeatedly at
home. There were several other incidents over the
next weeks, ending on May 22, just after Mrs.
Robichaud completed her probation period. On
May 24 she told her family physician and her
husband about the incidents and on May 25 she
informed her union president, and also told Bren-
nan she would no longer put up with his demands.
She repelled a further approach from him about
June 18, after he returned from a three-week
vacation. She had informed the Assistant Base
Administrative Officer Captain Adlard that she
had been sexually harassed by Brennan, and her
allegation was discussed at a meeting with Captain
Adlard and Brennan on June 28.
Did this combination of events constitute sexual
harassment? A manager who takes the initiative in
making sexual advances in his office during busi
ness hours does so at his own peril, and certainly
when the employee is, as here, in a situation of
particular vulnerability he must expect that any
doubtful facts will be interpreted against him.
Hindsight would suggest that Mrs. Robichaud
was ill-advised ever to telephone the applicant or
to visit him after hours to reason with him, and
particularly to be persuaded initially that she was
sexually frustrated and also to have had a final
encounter with him after the end of her probation
period.
Nevertheless, the whole course of conduct of the
two parties shows that the initiative was consist
ently his, that she repeatedly indicated her unwill
ingness, that on at least two occasions he threat-
ened her with work-related consequences if she
refused to cooperate, and that throughout the
period he used his position of authority to force
compliance. An omnipresent and seemingly
omnipotent superior, using the full powers of his
office, must be deemed to create a coerced rather
than a consensual response, unless he can show
otherwise. In other words, given the power-vulner
ability relationship as it existed here, the mere fact
of sexual encounters gives rise to a prima facie
case of sexual harassment, and to an onus on the
manager to show, if he can, that the acts did not
constitute sexual harassment.
The Review Tribunal found that the applicant
Brennan failed to discharge this onus. There was
evidence, in fact, a preponderance of evidence, on
which they could find him liable for a discrimina
tory practice, with or without the onus.
The Review Tribunal also found Brennan guilty
of sexual harassment by reason of his creation of a
poisoned work environment. This concept appears
to have developed to meet the requirement of the
Ontario legislation, following the U.S. legislation,
that discrimination against an employee on a pro
hibited ground had to be shown "with regard to
any term or condition of employment". The
Canadian Human Rights Act requires simply
adverse differentiation against an employee, a less
precise and more easily established offence. Here,
sexual acts of a coerced nature which amounted to
adverse differentiation having actually occurred, a
poisoned work environment is a fortiori, but not
necessary for the offence.
In summation, I conclude that there was ade
quate evidence for the Review Tribunal to find the
applicant Brennan liable for adverse differentia
tion based on sex. It was not a random or a general
adverse differentiation. It was rather because of
the individuating aspects of Mrs. Robichaud's sex
uality that she was victimized. Nevertheless, it was
because of her sex. As the Washington D.C. Fed-
eral Court of Appeals put it in Barnes v. Costle,
561 F.2d 983 (1977), at page 990:
But for her womanhood ... her participation in sexual activity
would never have been solicited ... Put another way, she
became the target of her superior's sexual desires because she
was a woman, and was asked to bow to his demands as the
price for holding her job.
No case could provide a clearer example than the
present one of adverse differentiation based on
sexual characteristics, since it was precisely those
qualities that were the object of the applicant
Brennan's attention.
A related point argued on this applicant's behalf
was that the Review Tribunal, like any appellate
body, lacked the power to reverse the findings of
fact made by the first Tribunal unless the latter
had made "some palpable and overriding error":
Stein et al. v. The Ship `Kathy K", [1976] 2
S.C.R. 802, at page 808; 62 D.L.R. (3d) 1, at page
5. However, assuming without deciding that the
powers of a Review Tribunal under section 42.1 of
the Canadian Human Rights Act are properly so
limited, the Review Tribunal here reversed an
inference drawn from the facts, rather than the
initial Tribunal's view of the facts themselves, as I
have already indicated. In the view I take, this
inference was a palpable and overriding error and
so the test is satisfied in any event.
The large question which remains is as to the
employer's liability for the sexual discrimination
practised by Brennan. While it would be an inter
esting excursus to look at this question from the
dynamic viewpoint of the law of torts, the
Supreme Court of Canada has recently held with
respect to the parallel Ontario Human Rights
Code that such an approach is foreclosed by the
legislative initiative expressed in the Code: Seneca
College of Applied Arts and Technology v. Bha-
dauria, [1981] 2 S.C.R. 181; 124 D.L.R. (3d) 193.
Laskin C.J.C., said for the Court (at pages 194-
195 S.C.R.; at page 203 D.L.R.):
In the present case, the enforcement scheme under The
Ontario Human Rights Code ranges from administrative
enforcement through complaint and settlement procedures to
adjudicative or quasi-adjudicative enforcement by boards of
inquiry. The boards are invested with a wide range of remedial
authority including the award of compensation (damages in
effect), and to full curial enforcement by wide rights of appeal
which, potentially, could bring cases under the Code to this
Court. The Ontario Court of Appeal did not think that this
scheme of enforcement excluded a common law remedy ....
The view taken by the Ontario Court of Appeal is a bold one
and may be commended as an attempt to advance the common
law. In my opinion, however, this is foreclosed by the legislative
initiative which overtook the existing common law in Ontario
and established a different regime which does not exclude the
courts but rather makes them part of the enforcement ma
chinery under the Code.
For the foregoing reasons, I would hold that not only does
the Code foreclose any civil action based directly upon a breach
thereof but it also excludes any common law action based on an
invocation of the public policy expressed in the Code. The Code
itself has laid out the procedures for vindication of that public
policy, procedures which the plaintiff respondent did not see fit
to use.
Obviously, similar considerations would apply to
the Canadian Human Rights Act. If we cannot
look to the common law of torts, what about the
parallel statutory field of criminal law?
A Tribunal decision under the Ontario legisla
tion points in that direction: Edilma Olarte et al.
v. Rafael DeFilippis and Commodore Business
Machines Ltd. (1983), 4 C.H.R.R. D/1705 (Board
of Inquiry—Prof. Peter A. Cumming), recently
upheld by a Divisional Court, In the Matter of an
Appeal from a Board of Enquiry under the
Ontario Human Rights Code, etc. Commodore
Business Machines Ltd., and Rafael DeFilippis v.
The Minister of Labour for Ontario et al., supra
[not yet reported]. The Tribunal concludes, inter
alia that where an employee is part of the "direct-
ing mind" of the corporation, then the employer
corporation is itself personally in contravention, so
that "the act of the employee becomes the à ct of
the corporate entity itself, in accordance with the
organic theory of corporate responsibility" (at
page D/1744). This is based on a criminal law
rather than a tort analogy.
In R. v. Waterloo Mercury Sales Ltd. (1974),
18 C.C.C. (2d) 248 an Alberta District Court held
a corporation guilty of fraud under subsection
338(1) of the Criminal Code [R.S.C. 1970, c.
C-34] for the action of its used car sales manager
in turning back the odometers on used cars prior to
sale even though this was contrary to written
corporate policy, on the ground that he was the
directing mind and will of the corporation in all
matters relating to the used car operation of the
company. Going even further, in R. v. P.G. Mar
ketplace and McIntosh (1979), 51 C.C.C. (2d)
185 the British Columbia Court of Appeal held
that a company was guilty of fraud where
unknown to the directors a salesman for his own
benefit defrauded a customer. These cases are both
based on the law as laid down by the Ontario
Court of Appeal in R. v. St. Lawrence Corp. Ltd.,
[1969] 3 C.C.C. 263, at page 281 (per Schroeder
J. A.):
... if the agent falls within a category which entitles the Court
to hold that he is a vital organ of the body corporate and
virtually its directing mind and will in the sphere of duty and
responsibility assigned to him so that his action and intent are
the very action and intent of the company itself, then his
conduct is sufficient to render the company indictable by
reason thereof.
All of these cases stand for the proposition that,
where there is a clear delegation of authority to a
servant in a particular area of responsibility, he is
the directing mind and will of the corporation in
that area so as to render it criminally liable for his
acts. The McIntosh case makes it clear that this is
so even when the servant is acting entirely for his
own benefit.
On this analogy the Government would be
responsible for Brennan's actions since they would
be deemed to be those of the Government itself if
Brennan could be considered to be the directing
mind and will of the cleaning operation. His role
was described as follows by the original Tribunal
[at page 1093]:
There are several lead hands in the Cleaning Department.
They are supervised by two Area Foremen who, in turn, are
supervised by the Foreman, Mr. Brennan. Mr. Brennan is
supervised by the Base Assistant Administrative Officer and,
ultimately, the Base Commanding Officer. Assignment of Mrs.
Robichaud's geographic workplace, duties, workload, and
cleaners to supervise was done mainly by the Area Foreman,
subject to the supervision and, at times, the intervention of Mr.
Brennan.
The applicant Brennan was the chief civilian
employee at the base and the person to whom was
delegated responsibility for the cleaning operation.
Moreover, it was he who had the principal input
into the employer's decision with respect to the
satisfactory completion of Mrs. Robichaud's pro
bation period. In short, it could reasonably be
inferred that he was the directing mind and will in
so far as the cleaning operation was concerned.
Nevertheless, in my view the thrust of the
Seneca College decision should lead us to look for
the principles of liability rather in the four corners
of the statute itself. In fact, even before the Seneca
College decision the British Columbia Court of
Appeal in Re Nelson et al. and Byron Price &
Associates Ltd. (1981), 122 D.L.R. (3d) 340
adopted the approach that an employer's vicarious
liability under the Human Rights Code [R.S.B.C.
1979, c. 186] of that Province must be determined
from the words of the legislation. In that case the
Court held that the Code could not be read to
create,. such -a liability. However, its value as a
precedent is limited by the fact that the board of
inquiry there had made an order for aggravated
damages, and the Court held that the wording of
the legislation with respect to aggravated damages
("knowingly or with a wanton disregard") neces
sitated a personal contravention by the employer
for liability to be established.
The salient features of the Canadian Human
Rights Act in this context are the principle set out
in section 2 and the remedies provided by section
41. The principle of the Act is a broad one: that
"every individual should have an equal opportunity
with other individuals to make for himself or
herself the life that he or she is able and wishes to
have ... without being hindered in or prevented
from doing so by discriminatory practices". The
combined effect of this principle and section 11 of
the Interpretation Act amounts to a virtual direc
tion to a Court to interpret the Act so as to render
the largest and most liberal protection to those
discriminated against. Such protection must needs
include recourse against an employer.
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 employ
er. 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 adoption of a special program, plan or
arrangement ... to prevent the same or a similar
practice occurring in the future". Only an employ
er could fulfil such a mandate.
I also agree with the contention of the respond
ent Canadian Human Rights Commission that
vicarious liability is a clear implication of the
Seneca College decision. If the development of a
common-law tort of discrimination, as accepted by
the Ontario Court of Appeal, is pre-empted by the
legislative development of a human rights code, it
can only be supposed that such a development
would leave those discriminated against with rights
of enforcement at the very least as broad as those
which they would have had at common law, and
would therefore include some concept of employer
liability.
All of this is with respect to the Canadian
Human Rights Act in general. But the recognition
of employer liability is a fortiori in reference to
sexual discrimination under section 7, which reads:
"It is a discriminatory practice, directly or in
directly ... (b) in the course of employment, to
differentiate adversely in relation to an employee,
on a prohibited ground of discrimination." The
words "directly or indirectly" are not found in the
comparable section of the Ontario Code, or indeed
in the definition of other discriminatory practices
under the federal Act. They indicate particularly
with respect to this form of discrimination a clear
acceptance of employer liability.
However, I cannot take the notion of indirect
responsibility to mean an absolute liability. The
very words "directly or indirectly" connote some
form of participation by those deemed responsible.
An employer must, therefore, have at least an
opportunity of disclaiming liability by reason of
bona fide conduct.
This is in effect where the U.S. Courts have
ended up. In the two cases already cited, the
Federal Court of Appeals for the District of
Columbia does not hesitate to state that an
employer is liable for discriminatory acts commit
ted by supervisory personnel, but the Court in
Barnes v. Costle adds that "should a supervisor
contravene employer policy without the employer's
knowledge and the consequences are rectified
when discovered, the employer may be relieved
from responsibility" (supra, at page 993).
This would establish a rule of law akin to that
recently enunciated with respect to regulatory or
public welfare offences, which are not truly crimi
nal but are prohibitions in the public interest. In
R. on the information of Mark Caswell v. Corpo
ration of City of Sault Ste. Marie, [1978] 2
S.C.R. 1299, Dickson J. (as he then was), speaking
for the Court, said that such offences "might well
be regarded as a branch of administrative law to
which traditional principles of criminal law have
but limited application" (at page 1303), and held
that they are offences of strict liability as a half
way house between mens rea and absolute liability,
allowing a defence based on reasonable care at the
proof of the defendant on the balance of
probabilities.
This is also, incidentally, where the statute has
come to as a result of recent amendments. Subsec
tion 48(5) [S.C. 1980-81-82-83, c. 143, s. 23] now
explicitly provides for employer liability for the
acts of employees in the course of employment but
subsection 48(6) allows the employer to exculpate
himself by establishing lack of consent and all due
diligence to prevent the act or omission from being
committed and subsequently to mitigate or avoid
the effort thereof.
The view I take of the law is essentially that
adopted by the Review Tribunal, which stated [at
page 16,053]:
The authorities provided to this Tribunal make it quite clear
that the liability of the employer for its supervisory personnel is
a strict liability.
The whole of the Review Tribunal's approach
would indicate that it did not consider the employ
er's strict liability to amount to absolute liability.
On the basis, then, of employer responsibility
subject to a showing of due care and concern, we
turn to the Review Tribunal's findings concerning
the Government's response [at page 16,053]:
In this case, there was no clearly defined policy against
sexual harassment which had been communicated to the
employees. Secondly, when the complaints were brought to the
attention of Mr. Brennan's superiors, no investigation was
conducted by the employer to determine the truth or otherwise
of the allegations and in particular no investigation was
requested or made pursuant to the Financial Administration
Act, Section 10 [This apparently should have been section 7.]
On the contrary, steps were taken to remove Mrs. Robichaud
from the normal routine of a lead hand. She was ultimately
transferred to the so called "punishment block" on the barracks
where her duties were severely curtailed. This treatment of
Mrs. Robichaud would give the impression to the other
employees on the base that she had fallen out of favour with the
people in charge of personnel. There was certainly no indication
that Mr. Brennan was disfavoured. There was the orchestrated
attempt to discredit Mrs. Robichaud after she had filed her
complaint by the flood of letters and petitions against her, a
circumstance which should have prompted great suspicion and
therefore closer inquiry. Finally, we find it particularly irres
ponsible on the part of the employer that the activities of Mr.
Brennan in relation to the personnel who were called to testify
before the Tribunal were not monitored so as to prevent any
coercion or intimidation of them by Mr. Brennan.
I would not myself expect nearly so much in
1979 by way of communication of the employer's
determination to deter sexual discrimination as in
1984, given the social sensitization that has
occurred with respect to this problem in the last
five years. However, for the employer to allow
Mrs. Robichaud to have her duties adversely
affected on June 29, just a month after she had
successfully completed six months of probation
without apparently a single complaint, as a result
of the letters and petitions against her which even
the military authorities admitted suggested orches
tration by the applicant Brennan, the very person
against whom she had made an accusation of
sexual harassment, was evidence on the basis of
which the Review Tribunal could find a lack of
due care and concern. So was the manner in which
the matter was raised by the Assistant Administra
tive Officer with Brennan. So was the initial treat
ment of her grievances. So even was the Confiden
tial Memorandum of the Base Commander the
following September 17 (Appeal Book, vol. 17,
page 2212):
CONFIDENTIAL
AIDE-MEMOIRE
REDRESS-MRS ROBICHAUD-11 SEP 79
17 Sep 79
2. Firstly, the case was badly handled at the lowest supervisory
level in that a number of items of complaint, whether written or
unwritten, did not seem to be dealt with at all with Mrs
Robichaud and with the individuals who made the complaint.
This led eventually to a Report of Shortcomings which in my
view was not warranted in terms of the methods employed in
arriving at the Report of Shortcomings. This is the reason for
my being quite lenient in hearing the grievances and in eventu
ally ripping up all the evidence. The fact remains, however, that
Mrs Robichaud has weaknesses in her supervisory abilities
which if not corrected should result in some form of action,
whether it be corrective in nature or whether it be of a career
nature, in that we can no longer employ her as a Lead-hand or
we can't employ her at all.
3. Secondly, and in the long run possibly more important, is the
possibility of the feeling being generated amongst cleaning
staffs, or for the matter amongst all civilian staffs on the Base,
that the Union has in fact won a position over management. I
have discussed this with Mr Costello [the Union president] and
have given him fair warning that if I find that this feeling is
being generated deliberately then I would have to take some
positive action. I have further indicated to him that this is not a
win or lose situation but that Mrs Robichaud's grievances were
redressed in her favour primarily because of the way in which
the matter was handled, not because of the possibility of the
allegations being correct or incorrect. In other words, there is
very good evidence to support the fact that Mrs Robichaud's
performance of her duties is lacking.
There seems to have been no evidence in the
record that the Base Commander's view of her
shortcomings was based on anything more than the
suspicious letters and petitions, which were never
investigated. He acknowledges that the case was
badly handled, but is concerned that any correc
tion of the situation not be interpretable as a
victory for the Union over management.
On such facts I cannot find that the Review
Tribunal based its decision on an erroneous finding
of fact made in a perverse or a capricious manner
or without regard for the material before it, as
required by section 28 of the Federal Court Act.
A final argument raised by the applicant Trea
sury Board, relying on Stein et al. v. The Ship
"Kathy K", (supra), was that the Review Tribunal
was not justified in substituting its view of the
facts in relation to the employer's liability for that
of the initial Tribunal. Since the first Tribunal had
found that Brennan did not sexually discriminate
against Mrs. Robichaud given her consent, it did
not have to decide on the consequent liability of
the employer for this discrimination. Nevertheless,
the Tribunal did conclude [at page 1102]:
On the whole, therefore, I cannot hold the employer (exclud-
ing Mr. Brennan) in any way responsible for adverse differen
tial treatment of Mrs. Robichaud after her complaints about
Mr. Brennan became known to Base management.
Counsel for the Treasury Board argued that this
must be read as meaning "if I am wrong in my
factual finding exonerating Brennan, in the alter
native I find that the liability was Brennan's alone
and not his employer's".
I cannot so read these words. I think that what
the Tribunal must have had in mind was an
independent discriminatory practice, subsequent
and unrelated to Brennan's, which the employer
might have been thought to be liable for. I am
strengthened in this conclusion by the fact that the
Tribunal failed to engage in any analysis of the
existence of a principle of respondeat superior
which might have provided a legal basis for the
factual excursus counsel contends for.
I would therefore dismiss both section 28
applications.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.