Janzen v. Pharos Restaurant (1989), 95 N.R. 81 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Dianna Janzen and Tracy Govereau v. Platy Enterprises Ltd. and Platy Enterprises Ltd., carrying on business under the firm name and style of Pharos Restaurant and Tommy Grammas and Women’s Legal Education and Action Fund (LEAF)
(20241)
Indexed As: Janzen and Govereau v. Pharos Restaurant and Grammas et al.
Supreme Court of Canada
Dickson, C.J.C., Beetz, McIntyre, Wilson, Le Dain, La Forest and L’Heureux-Dube, JJ.
May 4, 1989.
Summary:
A one person board of adjudication appointed under the Manitoba Human Rights Act, S.M. 1974, c. 65, found that a male employee of a restaurant was guilty of sexually harassing two female co-workers and thereby breaching s. 6(1) of the Human Rights Act by discriminating on the basis of sex. The adjudicator also found the restaurant liable for its employee’s acts. Both the employee and the employer were found jointly and severally liable for the complainants’ damages. The adjudicator awarded damages for lost wages plus exemplary damages to both complainants. The adjudicator also ordered the restaurant to undertake a program to ensure that the restaurant premises remained free from sexual harassment. See (1985), 6 C.H.R.R. D/ 2735. The male employee and the restaurant appealed on a number of grounds.
The Manitoba Court of Queen’s Bench, in a decision reported in [1986] 2 W.W.R. 273; 38 Man.R.(2d) 20; 24 D.L. R.(4th) 31; 86 C.L.L.C. 16,009; 7 C.H. R.R. D/3309, dismissed the appeal, except to the extent that the court varied (reduced) the quantum of damages and held that the adjudicator lacked power to order the restaurant to give the undertaking respecting sexual harassment. The male employee and the restaurant appealed. The complainants cross-appealed to restore the original damage awards.
The Manitoba Court of Appeal, in a decision reported in [1987] 1 W.W.R. 385; 43 Man.R.(2d) 293; 33 D.L.R. (4th) 32; 87 C.L.L.C. 17,014; 8 C.H.R. R. D/3831, allowed the appeal and dismissed the cross-appeal. The complainants appealed.
The Supreme Court of Canada allowed the appeal.
Civil Rights – Topic 902
Discrimination defined – The Supreme Court of Canada stated that “while the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual’s personal characteristics, discrimination does not require uniform treatment of all members of a particular group” – See paragraphs 62 to 65.
Civil Rights – Topic 987
Discrimination – Employment – On basis of sex – Sexual harassment – The Human Rights Act, S.M. 1974, c. 65, s. 6(1), inter alia, prohibited discrimination in employment on the basis of sex – The Supreme Court of Canada discussed the concept of sexual harassment in the work place – The Supreme Court held that sexual harassment in the work place constituted discrimination in employment on the basis of sex, contrary to s. 6(1) – The court specifically rejected the argument that sexual harassment did not constitute sexual discrimination because harassers select their targets on the basis of a personal characteristic (physical attractiveness), rather than on the basis of a group characteristic (gender) – See paragraphs 49 to 67.
Civil Rights – Topic 993
Discrimination – Employment – Liability of employer for acts of employee – A board of adjudication appointed under the Human Rights Act (Man.) found a male employee guilty of sexually harassing two female co-workers – The Supreme Court of Canada held that the employee was guilty of sexual discrimination contrary to the Act and that the Act required that the employer be liable for the discriminatory acts of its employees, where those actions were work- related – The court held that the male employee’s actions fell within the meaning of the “course of his employment” in the sense that the actions were work-related – The court noted the employer failed to ensure that the male employee’s power over female employees was not abused, after the women made specific complaints about the harassment – See paragraphs 68 to 72.
Civil Rights – Topic 7108
Provincial legislation – Practice – Costs – The Supreme Court of Canada held that courts should award costs against the Manitoba Human Rights Commission only in exceptional circumstances – See paragraph 74.
Damage Awards – Topic 2023
Exemplary or punitive damages – Discrimination – Employment – On basis of sex – Sexual harassment – A board of adjudication appointed under the Human Rights Act (Man.) found that two female employees who were sexually harassed by a male co-worker were sexually discriminated against – The board awarded punitive damages of $3,000.00 to one employee and $3,500.00 to the other – The trial judge reduced the punitive damages to $1,500.00 and $1,000.00 respectively, and the Manitoba Court of Appeal concurred – The Supreme Court of Canada held that the trial judge should not have reduced the damages – See paragraph 73.
Words and Phrases
Sex discrimination
– The Supreme Court of Canada discussed the meaning of the term “sex discrimination” in the work place – See paragraph 48.
Words and Phrases
Sexual harassment
– The Supreme Court of Canada discussed the meaning of the term “sexual harassment” in the work place – See paragraphs 49 to 57.
Cases Noticed:
Hufnagel v. Osama Enterprises Ltd. (1982), 3 C.H.R.R. D/922, refd to. [para. 14].
Torres v. Royalty Kitchenware Ltd. and Guerico (1982), 3 C.H.R.R. D/858, refd to. [para. 14].
Olarte v. De Filippis (1983), 4 C.H. R.R. D/1705, refd to. [para. 14].
Giouvanoudis v. Golden Fleece Restaurant (1984), 5 C.H.R.R. D/1967, refd to. [para. 14].
Robichaud v. Brennan (1982), 3 C.H.R. R. D/977, revsd. (1983), 4 C.H.R.R. D/1272, refd to. [para. 14].
Brennan v. Canada and Robichaud, [1984] 2 F.C. 799; 57 N.R. 116; 6 C.H.R.R. D/1695 (F.C.A.), refd to. [para. 14].
Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, appld. [para. 18].
Bell v. Ladas (1980), 1 C.H.R.R. D/155, folld. [para. 22].
Dakota Ojibway Tribal Council v. Bewza (1985), 37 Man.R.(2d) 207; 24 D.L.R.(4th) 374 (C.A.), refd to. [para. 36].
Kotyk v. Canadian Employment and Immigration Commission (1983), 4 C.H.R. R. D/1416, refd to. [para. 45].
Phillips v. Hermiz (1984), 5 C.H.R.R. D/2450, refd to. [para. 45].
Doherty v. Lodger’s International Ltd. (1981), 38 N.B.R.(2d) 217; 100 A.P.R. 217; 3 C.H.R.R. D/628, refd to. [para. 45].
Coutroubis v. Sklavos Printing (1981), 2 C.H.R.R. D/457, refd to. [para. 45].
Hughes v. Dollar Snack Bar (1981), 3 C.H.R.R. D/1014, refd to. [para. 45].
Cox v. Jagbritte Inc. (1981), 3 C.H. R.R. D/609, refd to. [para. 45].
Mitchell v. Traveller Inn (Sudbury) Ltd. (1981), 2 C.H.R.R. D/590, refd to. [para. 45].
Deisting v. Dollar Pizza (1978) Ltd. (1982), 3 C.H.R.R. D/898, refd to. [para. 45].
McPherson v. Mary’s Donuts (1982), 3 C.H.R.R. D/961, refd to. [para. 45].
Johnstone v. Zarankin (1985), 6 C.H. R.R. D/2651, refd to. [para. 46].
Foisy v. Bell Canada (1984), 6 C.H.R. R. D/2817, refd to. [para. 46].
Commodore Business Machines Ltd. v. Ontario Minister of Labour (1984), 6 C.H.R.R. D/2833, refd to. [para. 46].
Mehta v. MacKinnon, Jeganathan, Sterling and Human Rights Commission (1985), 67 N.S.R.(2d) 429; 155 A.P. R. 429; 19 D.L.R.(4th) 198, refd to. [para. 46].
Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 48].
Barnes v. Costle (1977), 561 F.2d 983, refd to. [para. 54].
Bundy v. Jackson (1981), 641 F.2d 934, refd to. [para. 54].
Henson v. Dundee (1982), 682 F.2d 897, refd to. [para. 54].
Meritor Savings Bank v. Vinson (1986), 106 S. Ct. 2399, refd to. [para. 54].
Zarankin v. Johnstone (1984), 5 C.H. R.R. D/2274, affd. (1985), 6 C.H.R. R. D/2651, refd to. [para. 61].
Brooks, Allen and Dixon et al. v. Can ada Safeway Ltd. (1989), 94 N.R. 373 (S.C.C.), appld. [para. 63].
Porcelli v. Strathclyde Regional Council, [1985] I.C.R. 177, affd. [1986] I.C.R. 564, refd to. [para. 66].
Statutes Noticed:
Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175, sect. 6(1) [paras. 3, 9, 11, 15, 22, 33, 37, 40, 59]; sect. 19(4), sect. 20 [para. 74]; sect. 28(1) [para. 11]; sect. 28(2)(b) [para. 11]; sect. 28(2)(c) [para. 11].
Human Rights Code, S.M. 1987-88, c. 45, sect. 19 [para. 12].
Civil Rights Act of 1964 (U.S.A.), Title VII [paras. 50, 53].
Labour Code, R.S.C. 1970, c. L-1, sect. 61.7 [para. 50].
Canada Labour Code – see Labour Code.
Human Rights Code, S.O. 1981, c. 53, sect. 6 [para. 51].
Human Rights Code, R.S.N. 1970, c. 262, sect. 10.1 [para. 51].
Authors and Works Noticed:
Shorter Oxford English Dictionary (3rd Ed.) [para. 30].
Abella, Equality in Employment: Royal Commission Report (1984), p. 2 [para. 48].
MacKinnon, Catharine, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), p. 1 [para. 49].
Aggarwal, Arjun P., Sexual Harassment in the Workplace (1987), pp. 1 [para. 49]; 5-6 [para. 57].
Backhouse, Constance and Cohen, Leah, The Secret Oppression: Sexual Harassment of Working Women (1978), p. 38 [para. 49].
American Legal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex (1985), 29 C.F. R. 1604.11(a) [para. 50].
Hickling, Employer’s Liability for Sexual Harassment (1988), 17 Man. L.J. 124, p. 127 [para. 57].
Counsel:
Aaron L. Berg and G. Hannon, for the appellants;
No one appeared for the respondents;
Louise Lamb, for the intervener.
Solicitors of Record:
Tanner Elton, Winnipeg, Manitoba, for the appellants;
Fillmore & Riley, Winnipeg, Manitoba, for the intervener.
This appeal was heard before Dickson, C.J.C., Beetz, McIntyre, Wilson, Le Dain, La Forest and L’Heureux-Dubé, JJ., of the Supreme Court of Canada on June 15, 1988. The decision of the Supreme Court was delivered on May 4, 1989, by Dickson, C.J.C., in both official languages.
Le Dain, J., took no part in the judgment.
