COMMENTS
CHRONIQUE DE JURISPRUDENCE
Robichaud v. R.: Confirmation of Employers’ Liability for
Human Rights Violations by Employees
Dr Arjun P. Aggarwal*
The recent landmark decision of the Supreme
Court of Canada in the case of Robichaud v.
R. confirms the notion that an employer is
liable for the discriminatory acts of its em-
ployees. The author supports this decision,
which favours giving a broader construction
to the concept of employers’ liability. He ar-
gues that the case re-affirms the jurispruden-
tial trend found in the decisions of human
rights tribunals across Canada. He further ar-
gues that the decision extends even to actions
by non-supervisory personnel, notwithstand-
ing that Robichaud deals with a supervisor’s
actions. The author concludes that the Su-
preme Court has determined that the Ca-
nadian Human Rights Act imposes a
statutory duty on employers to provide safe
and healthy working environments.
Rcemment dans l’affaire Robichaud c. R., la
Coursupreme du Canada a faitjurisprudence
en confirmant
la responsabilit6 d’un em-
ployeur pour les actes discriminatoires de ses
employes. L’auteur appuie cette d~cision, qui
favorise une interpretation large de Ia res-
ponsabilit6 de ’employeur. I soutient qu’clle
renforce le courant jurisprudentiel des tri-
bunaux de droits de la personne au Canada.
I1 soutient par ailleurs que l’arr8t s’applique
m~me aux gestes poses par du personnel non
surveillant, bien que Robichaud ne concer-
nait que les actions du personnel surveillant.
La Cour supreme, conclut ‘auteur, a reconnu
que l’employeur a une obligation I6gale de
garantir un environnement de travail sain, en
vertu de la Loi Canadienne sur les droits de
la personne.
-M.A., LL.M., J.S.D., Co-ordinator of Labour Management Studies, Confederation College,
Thunder Bay.
19871
COMMENTS
On July 29, 1987 the Supreme Court of Canada handed down a land-
mark decision in Robichaud v. R.I In so doing, the court reversed the de-
cision rendered by the Federal Court of Appeal2 and held that the employer
in this case, the Department of National Defence, was liable for the actions
of its employee, Dennis Brennan, who had sexually harassed the applicant,
Bonnie Robichaud. The Supreme Court decision alleviated the uncertainty
and confusion regarding an employer’s potential liability for the conduct of
its employees, which had been created by the lower court’s decision.
I. Background
Bonnie Robichaud began employment as a cleaner with the Department
of National Defence at its Command Base in North Bay, Ontario in 1977.
She was later promoted to the position of lead hand effective November
20, 1978, subject to a six-month probation period lasting until May 20,
1979. Throughout the period, Brennan was foreman of the Cleaning De-
partment on the base and had full responsibility for the cleaning operation.
He supervised two area foremen who, in turn, supervised the lead hands,
including Robichaud.
In January 1980, she filed a complaint with the Canadian Human Rights
Commission alleging that she had been sexually harassed by her supervisor,
Brennan, and subsequently discriminated against and intimidated by her
employer, the Department of National Defence.
A Human Rights Tribunal was appointed under section 39 of the Ca-
nadian Human Rights Act 3 to inquire into Robichaud’s complaint. The
Tribunal dismissed the complaint against Brennan and against his employer,
notwithstanding the fact that it found that a number of encounters of a
sexual nature had occurred between Brennan and Robichaud. 4 However,
an appeal to a Review Tribunal was allowed, where it was found that Bren-
nan had sexually harassed Robichaud and, further, that the Department of
National Defence was strictly liable for the actions of its supervisory
personnel.5
Both Brennan and the Crown (as represented by the treasury Board,
acting for the Department of National Defence) filed applications under
1[1987] 2 S.C.R. 84, 87 C.L.L.C. 17,025, 8 C.H.H.R. D/4326, (sub non. Brennan v. R.) 75
N.R. 303 [hereinafter Robichaud cited to S.C.R.].
2Brennan v. R. (1985), [1984] 2 FC. 799,57 N.R. 116, (sub nom. R. v. Robichaud) 6 C.H.R.R.
D/2695 (C.A.) [hereinafter Brennan cited to EC.].
3S.C. 1976-77, c.33.
4Robichaud v. Brennan (1982), 3 C.H.R.R. D/977 (Human Rights Trib.).
5Robichaud v. Brennan (14 February 1983), (Human Rights Review Trib.) [unreported].
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section 28 of the Federal Court Act, 6 thereby requesting the Federal Court
of Appeal to review and set aside the decision of the Review Tribunal. Both
applications were heard at the same time. Brennan’s application (which
included a challenge to the concept that sexual harassment was a form of
sex discrimination) was dismissed, but that of the Crown was allowed
(MacGuigan J. dissenting). The Federal Court of Appeal, in setting aside
the decision of the Review Tribunal, referred the matter back to it on the
grounds that Robichaud’s complaint against the Crown was not sustainable.
The latter decision was appealed to the Supreme Court of Canada.
In order to fully appreciate the Supreme Court’s decision, one must
examine the reasoning of the Federal Court of Appeal in reversing the Re-
view Tribunal’s finding that the employer, the Treasury Board, was liable
for the sexual harassment caused by its employee. Speaking for the majority,
Mr Chief Justice Thurlow stated:
In my opinion, the decision of the Review Tribunal 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 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 discrimi-
nation to be illegal and to provide in section 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.”
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 practice.
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 someone
else, whether an employee or not. Compare Re Nelson el al. and Byron Price
& Associates Ltd.
It appears to me that under the applicable legislation in the case of a
corporation the authorization 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 management the public operation is carried
on, in this case the Minister of National Defence or the Treasury Board, would
6R.S.C. 1970 (2d Supp.), c. 10.
1987]
CHRONIQUE DE JURISPRUDENCE
197
engage the liability of the Crown. Nothing in the findings of either Tribunal
or in the record suggests that Brennan had authority 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 Brennan’s actions
in harassing Mrs. Robichaud. 7
II. Implications of the Federal Court of Appeal Decision
The Federal Court of Appeal dealt with the question of whether or not
the Crown (Department of National Defence) should be held vicariously
responsible for Brennan’s inappropriate sexual aggression. The court
adopted the reasoning in Nelson v. Byron Price and Associates Ltd,8 and
decided that the Crown was not responsible, that there was no basis in law
for imposing strict liability upon an employer for the discriminatory acts
of an employee, and that it would take a clear statutory directive to create
such vicarious liability.9
The impact of this decision was devastating in that it overruled prin-
ciples of employer liability that had been accepted by most human rights
tribunals in earlier cases, such as Kotyk v. Canadian Employment and Im-
7Supra, note 2 at 826-27.
8(1981), 27 B.C.L.R. 284, 81 C.L.L.C. 14,107, 2 C.H.R.R. D/385, (sub noin. Re Nelson and
Byron Price and Associates Ltd) 122 D.L.R. (3d) 340 (C.A.) [hereinafter Nelson cited to
B.C.L.R.].
91t may be noted that Mr Justice MacGuigan dissented, stating that the employer (the Treas-
ury Board) could be found liable upon the wording of section 7 of the Canadian Hunan Rights
Act, supra, note 3, which prohibits adverse differentiation in the course of employment, either
“directly or indirectly”. He acknowledged that “indirect responsibility” does not necessarily
entail employers’ “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. Further, the harasser
(Brennan) was the “directing mind” of the government with respect to the cleaning operation
at the Department of National Defence facilities where he and the complainant were employed.
According to MacGuigan J., where there is a clear delegation of authority to a servant in a
particular area of responsibility, his acts are the acts of the employer –
in this case, the Treasury
Board. He concluded that the employer is responsible for due care and concern, which was
not shown in the instant case, and that consequently, the Treasury Board is liable for the
discriminatory actions of its employee, Brennan. MacGuigan J. stated the following, supra,
note 2 at 845:
I also agree with the contention of the respondent Canadian Human Rights Com-
mission 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.
198
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[Vol. 33
migration Commission.’0 According to the Federal Court of Appeal, an
employer, and in particular a corporate employer, could no longer be held
liable for “indirectly” causing discrimination on prohibited grounds, or for
“constructive discrimination”. If the court’s words are read literally, they
suggest that only the person who actually commits discriminatory actions
is liable under the Act. Although the case related more specifically to sexual
harassment, the principle of liability to which the court referred would apply
equally with respect to all kinds of discriminatory practices. Thus, any re-
fusal of services by a government official to a person because of that person’s
colour or physical handicap would not attract any more liability on the part
of the Crown than would an act of sexual harassment, unless vicarious
liability or some other related concept of indirect employer liability was
expressly spelled out in the Act.
Moreover, although a corporate employer would be held liable for the
harassing conduct of any of its “directors”, there would be no liability for
the conduct of other supervisory personnel, unless their conduct was spe-
cifically authorized. In essence, the court decided that the common law
doctrines of vicarious, absolute and strict liability do not apply to discrim-
inatory conduct which is found to be in violation of the Act. Further, in
cases where the Crown is the employer, the decision required that the act
of harassment must have been committed or authorized by the minister
under whose responsibility the department falls, before any liability will be
imposed on the Crown.
III. The Supreme Court of Canada
In this context, the only issue before the Supreme Court was whether
or not an employer could be held responsible, under the Act, for the un-
authorized discriminatory acts committed by its employees in the course
of their employment.
The high court took this opportunity to address the issues that had,
until then, presented difficulties in the development of a coherent public
policy and consistent judicial standards concerning sexual harassment. It
reversed the Federal Court of Appeal and held that an employer could indeed
be held liable under the Act for the actions of its employees, and further
held that the employer, in this case, was so liable.
In arriving at its decision, the Supreme Court provided the following
analysis of the Act, and for that matter, all human rights statutes in Canada:
(i) that the Act incorporates certain goals basic to our society;
10(1983), 83 C.L.L.C 17,012, 4 C.H.R.R. D/1416 (Human Rights Trib.), aff’d by (sub nora.
Chubav. Kotyk) (1984), 84C.L.L.C. 17,005,5 C.H.R.R. D/1895 (Human Rights Review Trib.).
1987]
COMMENTS
-it
seeks to give effect to the principle of equal opportunity for indi-
viduals by eradicating invidious discrimination;
-the
statute is essentially concerned with the removal of discrimina-
tion, as opposed to punishment of anti-social behaviour;
-it
is directed to redressing socially undesirable conditions quite apart
from the reasons for their existence;
(ii) that the Act must be given such fair, large and liberal interpretation as
will best ensure the attainment of its goals;
(iii) that human rights legislation does not focus on motive or intention,
that its purpose is to alleviate the discriminatory effects of certain activities,
and to this end, it establishes what are essentially civil remedies, rather than
punitive remedies;
(iv) that theories of employer liability developed in the context of criminal
or quasi-criminal conduct, because they are fault-oriented, are therefore of
little value;
(v) that “vicarious liability” in tort law, because of its restrictive limitation
to acts occurring “in the course of employment”, also cannot meaningfully
be applied to the present statutory scheme;
-that
the phrase “in the course of employment”, as used in the Act,
given a purposive interpretation of the legislation, ought to be con-
strued as meaning “work or job-related”;
(vi) that the remedial objectives of the statute would be stultified if the
remedies enumerated therein were not available against the employer:
-Who but an employer could order reinstatement?
-Who but an employer could compensate for lost wages and expenses?
-Who but an employer could remedy undesirable effects?
-Who but an employer could provide the most important condition:
a healthy work environment?
(vii) that a Human Rights Commission must be empowered to strike at the
heart of the problem, to prevent its recurrence and to require that steps be
taken to enhance the work environment;
(viii) that the employer’s liability is purely statutory –
attach any label to this type of liability.”
it is unnecessary to
“As summarized by the author.
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IV. The Basis for Employers’ Liability
Initially, there existed no human rights statutes in Canada which ex-
plicitly held an employer to be directly responsible for the discriminatory
conduct committed by any of its employees in the course of their work. It
is noteworthy that the Act and the Ontario Human Rights Code were sub-
sequently amended to incorporate therein the concept of vicarious liability
by holding any employer liable for the discriminatory conduct of its em-
ployees.’ 2 However, the Ontario Human Rights Code specifically exempts
employers from liability for acts of sexual harassment committed by their
employees.’ 3 Thus, prior to the Supreme Court decision in Robichaud, hu-
man rights tribunals struggled to find legal grounds upon which to hold an
employer responsible for discriminatory conduct of employees. By and large,
to impose liability, such tribunals relied upon one of the established concepts
of strict liability, vicarious liability or direct liability via the organic theory
of corporate responsibility. The theory of vicarious liability under tort law
makes the employer liable for employees’ acts done in the course of em-
ployment. However, the organic theory of corporate responsibility is based
on the premise that the wrongdoer was the “directing mind” of the legal
entity, such that his/her acts became the acts of the corporation. This raises
a series of issues:
(i) whether the expression “directly or indirectly” in section 7 of the Act is
sufficient to impose strict liability on an employer;
(ii) whether an employer may be found liable based on the common law
tort doctrine of “vicarious liability”;
(iii) whether an employer can be held liable if it has not actively or knowingly
participated in the discriminatory practice; and
(iv) whether the wrongdoer was the “directing mind” of the organization.
V. Application of Vicarious Liability in Human Rights Cases
In 1975, a British Columbia Board of Inquiry extended the principle
of vicarious liability to discrimination cases by holding an employer re-
sponsible for the discriminatory conduct of its employee. Oram v. Pho14
was the first case of its kind in Canada. The case involved a complaint
against a restaurant owner for a barperson’s refusal to serve the complainant
because of the length of the latter’s hair. In analyzing the legal issues, the
12Canadian Human Rights Act, supra, note 3, s. 48(5); Human Rights Code, S.O. 1981, c.
53, s. 44(1). In other Canadian jurisdictions, human rights statutes have not yet made employers
specifically liable for the discriminatory conduct of their employees.
13Human Rights Code, ibid., s. 44(1) by reference to s. 4(2).
14(8 August 1975), (B.C. Bd of Inquiry) [unreported].
1987]
CHRONIQUE DE JURISPRUDENCE
board stated that if the restaurant owner’s liability was contingent upon his
personally having contravened the provisions of the British Columbia Hu-
man Rights Code,’5 this
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 rather than 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 acts done by his servant in the course of his
employment.36
A few years later, in the case of Nelson v. Gubbins,’7 another British
Columbia Board of Inquiry, which ruled similarly that the employer was
“vicariously liable” for its employee’s contravention of the British Columbia
Human Rights Code, was reversed on appeal where Mr Justice Taylor rea-
soned that section 17(2)(c) of that statute only grants to the Board the power
to make orders for the payment of aggravated damages against the “person
who contravened the Act”, and therefore cannot be read to allow such orders
to be made against other persons on the theory of vicarious liability. The
British Columbia Court of Appeal affirmed Taylor J.’s decision and indicated
that the authority to impose vicarious liability must necessarily be found
within the legislation.’ 8 Mr Justice Craig, for a unanimous court, stated:
I have no doubt that the legislation is remedial and that in accordance
with s. 8 of our Interpretation Act … it should be given such “fair, large and
liberal … interpretation as best ensures the attainment of its objects”. But I
have no doubt, also, that in striving for this interpretation a court should not
ascribe a meaning to words in the legislation which would normally be incon-
sistent with the grammatical and ordinary sense of the words used in the Act
as a whole. I think that there is much to be said for the view that an employer
should bear responsibility, in some form, for discriminatory conduct of an
employee in the course of his employment but that is a decision for the leg-
islature, not for a court. Our sole concern is whether s. 17 of the Human Rights
Code provides for vicarious liability. The operative phrase throughout s. 17 is
“person who contravened this Act”. In this case, the only conclusion is that
the board found that the respondent did not contravene the Act. Notwith-
standing this finding, the board concluded that the respondent was “vicariously
liable” for the contraventions by Mrs. Gubbins. While this result may be de-
sirable, it cannot, in my opinion, be inferred from the legislation. To find the
respondent “vicariously liable” would require reading words into the statute
which are, in my opinion, not justified.’ 9
‘5R.S.B.C. 1979, c.16.
16Supra, note 14 at 24.
17(1979), 17 B.C.L.R. 259, 106 D.L.R. (3d) 486 (S.C.).
18Supra, note 8.
19Ibid at 290-91.
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If the legislature had intended that an individual in the position of the re-
spondent should be amenable to any of the orders which may be made under
s. 17, it would have been a simple matter for the legislature to have enacted
words to the effect that any employer whose servant contravened the Act in
the course of his employment would be deemed to have contravened the Act.
The legislature has not done so either expressly or impliedly.20
The Nelson approach to denying employer liability for discriminatory
conduct of employees has never been widely accepted by human rights
tribunals. It would appear that most human rights tribunals have either
ignored Nelson, or have imposed liability on employers on the basis of legal
doctrines other than vicarious liability, such as the “organic theory of cor-
porate liability”. There was little or no change in judicial thinking with
regard to employer liability in discrimination cases for about 5 years until
the restrictive Nelson approach was resurrected in the Federal Court of
Appeal’s decision in the instant case. It then became evident that judicial
opinion in Canada was split into two opposing camps. One camp was in-
clined to hold an employer liable for the discriminatory conduct of its em-
ployees – particularly supervisory employees –
notwithstanding the fact
that human rights statutes had not expressly provided for such responsi-
bility; the other camp refused to similarly hold an employer liable, unless
such liability was expressly provided for by statute. The first group consisted
of a majority of human rights tribunals in most Canadian jurisdictions,
while the second group was dominated by the Federal Court of Appeal, 21
and the British Columbia2 2 and Manitoba 23 Courts of Appeal. Canadian
adjudicators have by and large embraced human rights statutes with open
arms, and have given them a fair and broad interpretation in order to
enhance their legislative agenda. Those same adjudicators, however, have
been criticized by certain appellate courts for acting with “Messianic zeal”. 24
20Ibid. at 291.
21Brennan, supra, note 2.
22Nelson, supra, note 8.
23Janzen v. Platy Enterprises Ltd (1986), [1987] 1 W.W.R. 385, 43 Man. R. (2d) 293, 8
C.H.R.R. D/3831 (C.A.) [hereinafter Janzen cited to W.W.R.]; Dakota Ojibway Tribal Council
v. Bewza (1985), [1986] 2 W.W.R. 225, 37 Man. R. (2d) 207, (sub norn. Bewza v. Dakota
Ojibwi’av Tribal Council) 7 C.H.R.R. D/3225 (C.A.) [hereinafter Dakota Ojibway Tribal Council
cited to W.W.R.].
24Janzen, ibid. at 402, where Huband J.A. stated:
Professor Cumming [in Olarte v. Commodore Business Machines Ltd] concedes
that adjudicators have approached their task with something akin to Messianic zeal.
Since sexual harassment is a naughty thing, a strained interpretation of the law is
justified. … [H]e writes as follows:
There is no doubt that Boards of Inquiry, by their creative interpretation of
the Human Rights Code, have made a substantial penetration into the workplace
in order to eradicate an insidious form of discrimination.
The problem is that their “creative interpretations have gone too far in stretching
19871
COMMENTS
VI. Employers’ Liability Under the Organic Theory
The leading case dealing with the organic theory is Lennard’s Carrying
Co. Ltd v. Asiatic Petroleum Co.25 In that case, a corporation owned a ship
which was unseaworthy. By virtue of British legislation at the time, the
owner of a ship could not be held liable for any loss or damage which arose
through no fault of his own. Lennard, the managing director of the cor-
poration, was aware that the ship was unseaworthy. He failed to take the
necessary steps to prevent it from going to sea in such a condition, and
consequently, a loss occurred. Thus, the issue was whether the shipowner
corporation could be held liable notwithstanding the statutory requirement
that the owner of the ship be personally liable.
The House of Lords concluded that there was “actual fault” on the part
of the corporation because Lennard was the corporation’s directing mind,
and hence, his acts or omissions became the acts or omissions of the cor-
poration itself. Viscount Haldane L.C. wrote:
My Lords, a corporation is an abstraction. It has no mind of its own any more
than it has a body of its own; its active and directing will must consequently
be sought in the person of somebody who for some purposes may be called
an agent, but who is really the directing mind and will of the corporation, the
very ego and centre of the personality of the corporation. 26
His Lordship went on to say that in the absence of testimony by Lennard
to the contrary, it was open to the court to conclude that he was “the directing
mind of the company”.
Thus, stemming from Viscount Haldane’s judgment in the Lennard’s
case, courts have elected to treat the acts of certain corporate officials as
those of the corporation itself, thereby engaging the personal liability of the
corporation. This is sometimes referred to as the “organic theory”, under
which fault is attributed to the corporation, which is regarded as an extension
of those managing its affairs. It must be emphasized that this liability is
distinct from the concept, in agency law, of vicarious liability arising out of
the master-servant relationship. In the case of R. v. St. Lawrence Corp.,27
the Ontario Court of Appeal expanded the scope of the organic theory of
corporate responsibility by holding that a large corporation might conceiv-
the meaning of discrimination as it is used in the statute in order to make a “pen-
etration into the workplace”, which is unwarranted and unintended. If legislators
wish to prohibit sexual harassment in the workplace, or anywhere else, they are
quite capable of saying so in clear and explicit terms.
25[1915] A.C. 705, [1914-15] All E.R. Rep. 280, 84 L.J.K.B. 1281, 113 L.T. 195 (H.L.) [here-
inafter Lennard’s cited to A.C.].
26Ibid. at 713.
27[1969] 2 O.R. 305, 7 C.R.N.S. 265, 5 D.L.R. (3d) 263 (C.A.).
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ably have separate and numerous directing or operating minds in its various
divisions or branch offices.
The organic theory has been applied in a number of cases involving
issues of human rights. Prime examples of this application are the decisions
in Iancu v. Simcoe County Board of Education28 and Olarte v. Commodore
Business Machines Ltd,29 both adjudicated by Professor Peter Cumming.
In the Olarte case, after reviewing the development of the law relating to
employers’ liability for breaches of human rights statutes by employees,
Cumming stated that an employer may breach the Human Rights Code in
the following situations:
(i) personal action: where the employer himself, by his own personal action,
directly or indirectly, intentionally infringes a protected right;
(ii) constructive discrimination: where the employer does not intend to
discriminate, but his acts have a discriminatory effect nonetheless;
(iii) authorizes or condones discrimination: where the employer himself
takes no direct action of discrimination, but authorizes, condones, adopts
or ratifies an employee’s discriminatory act or where the employer knew or
should have known, as a reasonable person would have known, of the com-
mission of discriminatory conduct and did not take reasonable steps to put
an end to, or at least minimize the discrimination, abuse or practice;
(iv) organic theory of corporate responsibility: where the employer is a
corporate entity, and an employee is in contravention of the human rights
legislation, and that employee is part of the “directing mind” of the cor-
poration, then the employer corporation is itself personally in contravention
because the act of the employee becomes the act of the corporation; and
(v) common law of agency: where an employee unlawfully (i.e. in contrav-
ention of legislation) causes a breach of contract between his employer and
a complainant, then the employer is liable for the contravention of the said
legislation under the common law in respect of agency, for the act of the
employee-agent is the act of the employer-principal so far as the third-party
complainant is concerned. 30
Thus, as has been illustrated under the “organic theory”, where an
employee is part of the “directing mind” of a corporation, then the employer
28(1983), 4 C.H.R.R. D/1203 (Ont. Bd of Inquiry).
29(1983), 83 C.L.L.C. 17,028, (sub norn. Olarte v. DeFilippis) 4 C.H.R.R. DI/1705 (Ont. Bd
of Inquiry), aff’d by (sub noin. Re Commodore Business Machines Ltd and Mill. Qf Labour
for Ontario) (1984), 49 O.R. (2d) 17, 14 D.L.R. (4th) 118, (sub norn. Comnodore Business
Machines Ltd v. Ontario Minister of Labour) 84 C.L.L.C. 17,028, 6 C.H.R.R. D/2833 (Div.
Ct).30As summarized by the author.
19871
CHRONIQUE DE JURISPRUDENCE
corporation finds itself personally liable. However, the important questions
remain as to which employee may be considered a directing mind of the
corporation, and when such is the case.
Where an employee is also the sole shareholder, a director or the ma-
nager of a corporation, there is obviously little difficulty in considering him
a “directing mind”. However, other situations require individual analysis
to determine the exact authority, control and discretion the employee ex-
ercises in personnel functions. This should be considered a precedent with
respect to the characterization of that employee as a “directing mind”.
As stated previously, the Nelson doctrine was revived in the Brennan31
decision, where the Federal Court of Appeal ruled that employers’ liability
for the discriminatory conduct of employees must be found within the four
corners of the statute. Encouraged by this decision, the Manitoba Court of
Appeal in the Janzen32 case stated that
the approach taken by Craig, J.A., in the Nelson case … and Thurlow, C.J., in
the Brennan case … makes good sense. If this sort of liability is to be imposed,
it is not too much to expect that the statute will so specify in clear terms. 33
This same court had followed the Nelson doctrine earlier, in the Dakota
Ojibway Tribal Council case, 34 when it refused to hold one “partner” liable
for the discriminatory conduct of the other partner. Mr Justice Twaddle
stated:
[T]he personal nature of an act of discrimination is such that in my view it
cannot amount to a contravention of the Act by anyone other than the dis-
criminator unless a partnership or corporate policy to discriminate can be
established or the partnership or corporation is shown to be an accomplice to
the act of discrimination. This is consistent with the decision of the British
Columbia Court of Appeal in Re Nelson and Byron Price & Assoc…. albeit
that the British Columbia Code is more specific as to the need for mens rea.35
The Federal Court of Appeal decision in Brennan was reluctantly fol-
lowed by Professor Robert Kerr in Gervais v. Agriculture Canada,36 wherein
he stated:
This brings me to the question of whether the Department can be held
liable to this harassment. The present law on this issue must be determined
in accordance with the decision of the Federal Court of Appeal in R. v. Rob-
ichaud … . Although, if the question were open to me to decide, I should find
31Supra, note 2.
32Supra, note 23.
331bid. at 407.
34Supra, note 23.
35Ibid. at 232-33.
36(1986), 7 C.H.R.R. D/3624 (Ont. Human Rights Trib.).
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the dissent of Mr. Justice MacGuigan to be far more appealing to reason, I am
bound by the majority decision ….37
However, the Brennan and Nelson decisions have been either ignored
or passed over by human rights tribunals in other jurisdictions. 38 In these
cases, corporate employers were held liable for acts of sexual harassment
committed by their employees. In Ratzlaff v. Dimas, 39 a Saskatchewan
Board of Inquiry went even further and found a “partnership” firm liable
for the discriminatory conduct (in this case, sexual harassment) of one of
the partners. The tribunal stated that this was “equally true whether as a
partner, Sections 12 and 14 of The Partnership Act are considered, or in the
case of a corporation, the owner is responsible for the actions of those acting
on his behalf.”’40
In the instant case, the Supreme Court examined the common law
theories of employer liability, within the context of the policy and purpose
of human rights statutes, and ruled that none of these are directly applicable
in situations involving issues of human rights. The court reasoned that the
theories of employer liability, as developed in the context of criminal or
quasi-criminal conduct, are inapplicable to human rights statutes because
the said theories are “fault-oriented”, whereas the central purpose of human
rights legislation is remedial, that is, to eradicate anti-social conditions,
regardless of the motives or intentions of those who create them. For similar
reasons, the theory of employers’ vicarious liability, as developed under the
law of torts, is also inapplicable to human rights statutes. The high court
itself pointed out the inapplicability, to the Canadian Human Rights Act,
of the limitation that the act complained of must have been done “in the
course of employment” as developed under the doctrine of vicarious liability
in tort.
VII. Employers’ Liability for Sexual Harassment by Non-Supervisory
Employees
The issue of whether an employer should also be held liable for acts of
sexual harassment committed by non-supervisory employees has been de-
bated both in Canada and the United States. Such harassment may not have
any “direct” job-related consequences (such as discharge or suspension), but
it nevertheless could create a hostile and poisonous working environment.
Further, it is argued that an employer should be held liable for “co-worker”
371bid. at D/3629.
38Muellerv. Esperado Holdings Ltd(I 986), 7 C.H.R.R. D/3405 (Sask. Bd of Inquiry); Thomp.
son v. Champion Foods Ltd (1985), 8 C.H.R.R. D/3905 (Alta Bd of Inquiry); Joss v. T & C
Gelati Ltd (1986), 8 C.H.R.R. D/3941 (B.C. Human Rights Council).
39(1986), 7 C.H.R.R. D/3402 (Sask. Bd of Inquiry).
40Ibid. at D/3404.
1987]
COMMENTS
sexual harassment because such an employee’s conduct can have a serious
impact on a co-worker’s ability to successfully perform his/her job. Thus,
co-worker sexual harassment can lead to the same results as sexual harass-
ment by a supervisor. Who else, other than an employer, is in a position to
provide a healthy and safe working environment?
It is to be noted that a Canadian Human Rights Commission policy
statement holds an employer vicariously liable even in situations where the
harassment is carried out by non-supervisory personnel. 4 1 In the United
States, the Equal Employment Opportunity Commission Guidelines also
hold an employer responsible for harassment by co-workers. 42
Thus, an important question arises. Does the decision of the Supreme
Court of Canada extend to the actions of non-supervisory employees? Not-
withstanding the fact that in Robichaud, the harasser (Brennan) was a su-
pervisory employee, it is submitted that the court’s observations may be
interpreted to the effect that an employer will be held liable for the discrim-
supervisory or non-supervisory. This
inatory conduct of all its employees –
position is supported by the following statement by Mr Justice La Forest:
Hence,.I would conclude that the statute contemplates the imposition of
liability on employers for all acts of their employees “in the course of em-
ployment”, interpreted in the purposive fashion outlined earlier as being in
some way related or associated with the employment. It is unnecessary to attach
any label to this type of liability; it is purely statutory.43
VIII. Employer Policy and Procedures
The Supreme Court has stated, in no uncertain terms, that an employer
is absolutely liable for the discriminatory acts of its employees. Does this
mean that an employer automatically becomes liable for his agent’s actions,
even when that agent is engaged in activities that are contrary to his em-
ployer’s policies, that the employer and its agent are inseparable –
they are
one and the same? It would appear not, as the decision in Robichaud seems
to recognize that the existence of a policy against sexual harassment and a
mechanism to handle employee complaints could provide an employer with
41See Canada, Human Rights Commission, Harassment Policy (February 1983), which states:
Any act of harassment committed by an employee or agent of any employer in the
course of employment shall be considered to be an act committed by that em-
ployer.[emphasis added]
42E.E.O.C. Guidelines, s. 1604.1 1(d), states the following:
[W]ith respect to conduct between fellow employees, an employer is responsible for
acts of sexual harassment in the workplace where the employer (or its agents or
supervisory employees) knows or should have known of the conduct, unless it can
show that it took immediate and appropriate corrective action.”
43Supra, note 1 at 95.
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[Vol. 33
a good defense which could partially or totally reduce liability. The court
stated:
[A]n employer who responds quickly and effectively to a complaint by insti-
tuting a scheme to remedy and prevent recurrence will not be liable to the
same extent, if at all, as an employer who fails to adopt such steps. These
matters, however, go to remedial consequences, not liability.44
It would appear that the court is informing employers that it is their actions,
and not their words, that are the key factors in assigning liability in sexual
harassment cases.
Therefore, the court has concluded that the Canadian Human Rights
Act, by implication, intends to impose absolute liability on employers for
the discriminatory conduct of their employees. It is now for the legislature
to decide whether to maintain this broad definition of liability, or to some-
how limit it through recourse to the legislative process. For this reason, the
court clearly distinguished between the issues of employer liability and the
remedies available if liability is established. However, it is interesting to
note that the United States Supreme Court recently held that an employer
assumes absolute liability for acts of sexual harassment committed by its
supervisory employees, regardless of whether the employer was aware, or
should have been aware of the discriminatory conduct. Mertor Savings
Bank v. Vinson45 (cited with approval by the Supreme Court of Canada in
the instant case46) went on to state that the mere presence of policies pro-
hibiting the misconduct, and absence of knowledge of the misconduct, are
not sufficient to insulate the employer from liability. Thus, an effective har-
assment policy does not necessarily provide total immunity for the em-
ployer, but may result in remedies being awarded which are different (lesser)
than those awarded in the case of an employer who does nothing at all to
protect and preserve the human rights of its employees.
IX. Implications for Public Policy
It is extremely significant that the Supreme Court of Canada, in deter-
mining the issue of employer liability, departed from the traditional ap-
proach, which is based on theories developed under the common law. It
reviewed the Canadian Human Rights Act in its totality, and determined
that its basic purpose is to “identify and eliminate discrimination”, and
that in the context of employment, these objectives cannot be achieved
without attributing to the employer responsibility for its employees’ con-
duct. The court concluded that in order for these objectives to be achieved,
441bid. at 96.
4589 L. Ed. (2d) 567 (1986).
46Supra, note I at 95.
1987]
CHRONIQUE DE JURISPRUDENCE
the remedies must be effective as well as be consistent with the “almost
constitutional” nature of the rights protected.
The Supreme Court of Canada has now determined that there exists a
statutory obligation which requires employers to provide safe and healthy
working environments, as it is the purpose and policy of human rights
statutes to eradicate any socially undesirable working atmospheres. When
an employee acts in violation of such statutory policy, the employer becomes
statutorily liable. The court has indeed paved the way for human rights
tribunals, not only in sexual harassment cases, but in all cases involving
violations of human rights. Thus, future human rights tribunals will not be
forced to undertake legal gymnastics in order to hold an employer liable for
its employees’ unauthorized discriminatory conduct, unless the legislature
statutorily restricts this liability. For example, the Ontario Human Rights
Code specifically exempts employers from liability in relation to acts of
sexual harassment committed by employees or agents. 47
Moreover, the Supreme Court of Canada has recognized that sexual
harassment does not necessarily occur only in the course of employment,
as would normally be expected. It is suggested that the phrase “in the course
of employment” should be given a broad interpretation, and should be
understood as meaning “work related”. Thus, the court gave the statute as
liberal and broad an interpretation as could have been anticipated. The
court’s broad interpretation of this phrase is consistent with the objectives
of human rights statutes. However, such a broad interpretation could lead
to very serious consequences if it were applied in cases not involving issues
of human rights. For example, application of this interpretation in torts or
workers’ compensation cases would lead to results not intended by the court.
On the other hand, this same court has often indicated that human rights
statutes are special, and that the broad interpretation given to these statutes
should not be extended to other types of statutes.
The Robichaud decision is of great importance in all cases involving
human rights violations, and not only with respect to sexual harassment
situations specifically. It is welcomed by women’s groups who encouraged
Robichaud in her eight-year fight up to the highest court, as well as by all
those interested in improving, protecting and enforcing human rights pol-
icies. The decision strengthens the abilities of human rights boards and
commissions in the implementation of their legislative objectives and
policies.
The greater significance of the decision rests in the reasoning of the
court rather than in the result. The court adopted a pragmatic approach
47Supra, note 13.
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and asked itself the following question: How can the objectives of the Ca-
nadian Human Rights Act be achieved? It emphasized that the employer
alone is in a position to enforce human rights in the work place. For example,
the employer alone can: (i) implement the policies of human rights legis-
lation; (ii) create a healthy work environment; (iii) reinstate an employee
who has been dismissed; (iv) provide benefits to the victim of the human
rights violation, and (v) punish the wrongdoer, the person who violated the
human rights provisions –
in the present case, the harasser.
Further, the court noted that human rights statutes are remedial in
nature, and are intended to create social change as well as eradicate socially
undesirable behaviour (in the context of the workplace). Once again, it
emphasized that protected human rights are special, “quasi-constitutional”
or “fundamental” in nature. In other words, the high court has associated
human rights legislation with the “Equality Rights” set out in the Canadian
Charter of Rights and Freedoms,48 and has afforded this legislation nearly
the same protection as it has to the Charter. The decision draws no dis-
tinction between individual employers, corporate employers or governments
as employers. In fact, the court imposed liability without any reference
whatsoever to whether the employer was a sole proprietor, a corporation or
a division of municipal, provincial or federal government, nor did its anal-
ysis attribute any importance to the size of the employer. In other words,
the Supreme Court implicitly stated that the employer’s identity, in such
cases, is totally irrelevant. The determining factor is that an employer is in
a position to control its employees, and thus must share the responsibility
for its employees’ conduct, when such conduct affects other employees’
terms and conditions of employment.
The court made it clear that it was not dealing with the issue of “whether
sexual harassment in the course of employment constitutes discrimination
on the grounds of sex” and, as such, it made no determination on that issue.
However, in light of the overall approach it adopted, it appears evident that
the Supreme Court has implicitly endorsed the argument that sexual har-
assment does, in fact, amount to discrimination on the grounds of sex, for
the purposes of human rights legislation.
The Supreme Court of Canada has granted the Manitoba Human Rights
Commission leave to appeal from the Manitoba Court of Appeal decision
in the Janzen case. 49 In that case, the appellate court reversed the Board of
Adjudication on the ground that sexual harassment does not amount to sex
discrimination. If the Robichaud decision is any indication of the high
4 8Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter the Charter].
49Supra, note 23. Leave was granted 25 June 1987: [19871 2 S.C.R. ix.
1987]
COMMENTS
court’s understanding and appreciation of human rights legislation in Ca-
nada, it appears likely that it will reverse the Janzen decision, as it reversed
the Federal Court of Appeal decision in the instant case.
In a democratic society, social change does not occur simply through
the enactment of a piece of legislation. A coherent understanding and ap-
preciation of the legislation is required, as well as support from the admin-
istration and the judiciary. If the courts fail to appreciate the social objectives
of the legislation, or are in conflict therewith, they may stall the progress
of social change through the interpretive process. History has not forgotten
the frustration of President Roosevelt with the United States Supreme Court
in regard to his “New Deal” legislation. That court’s decision in Schechter
Poultry Corp. v. United States50 held that the National Industrial Recovery
Act was unconstitutional, notwithstanding that this legislation was intended
to bring the nation out from deep economic depression.
The Supreme Court of Canada is facing a challenge during this decade
similar to that faced by the United States Supreme Court during the New
Deal Era (in terms of social change). Whereas the latter experienced difficulty
in embracing Roosevelt’s legislative objectives, the Canadian high court has
accepted the challenge with great enthusiasm, and has exhibited a knowl-
edgeable understanding and appreciation of Canadian social goals. This is
clearly illustrated in its decisions in a trilogy of human rights cases. 5′
In the instant case, the Supreme Court went directly to the root of the
problem by emphasizing the basic objectives of the Canadian Human Rights
Act and stating that it (and for that matter, all human rights legislation in
Canada) is social legislation which is enacted with a clear purpose and vision,
that is, to eliminate socially undesirable conditions which, in this regard,
amount to unhealthy working conditions.
Conclusions
There are numerous implications for employers in the Supreme Court
decision. They may be briefly summarized as follows:
-employers
ployees’ human rights in the workplace;
are responsible for the due care and protection of their em-
50295 U.S. 495, 79 L. Ed. 1570 (1935).
5
1Ontario Human Rights Commissionv. Simpsons-SearsLtd [1985] 2S.C.R. 536,86 C.L.L.C.
17,002, 7 C.H.R.R. D/3102, (sub nom. Re Ontario Human Rights Commission and Simpsons-
Sears Ltd) 64 N.R. 161, 23 D.L.R.(4th) 321; Canadian National Railway Corp. v. Canadian
Human Rights Commission [1987] 1 S.C.R. 1114, 87 C.L.L.C. 17,022, 8 C.H.R.R. D/4210
(sub nom. Action Travail des Femmes v. Canadian National Railway Corp.) 76 N.R. 161;
Robichaud v. R., supra, note 1.
REVUE DE DROIT DE McGILL
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are liable for the discriminatory conduct of, and sexual har-
-employers
assment by, their agents and supervisory personnel;
-sexual harassment by a supervisor is automatically imputed to the em-
ployer when such harassment results in a tangible job-related disadvantage
to the employee;
-explicit company policy forbidding sexual harassment and the presence
of procedures for reporting misconduct may or may not be sufficient to
offset liability;
-employers will be pressured to take a more active role in maintaining a
“harassment-free” work environment;
-employers will feel a greater discomfort with intimate relationships that
develop between supervisors and their subordinates due to the legal impli-
cations, and this may motivate employers to discourage such office
relationships;
-employers’
intentions to have effective sexual harassment policies are
insufficient. In order to avoid liability, the policies must be functional and
must work as well in practice as they do in theory.
