The Court set aside and remitted back to a re-hearing the decision of British Columbia Human Rights Tribunal which had found that sexual harassment constituted discrimination based on sex

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Sexual harassment – Judicial review – Standard of review – Correctness – Compliance with legislation

Friedmann v. MacGarvie, 2011 BCSC 1147, [2011] B.C.J. No. 1613, British Columbia Supreme Court, August 24, 2011, L.W. Bernard J.

For approximately one year, the respondent rented a suite from the petitioner. After the tenancy ended, the respondent filed a complaint with the British Columbia Human Rights Tribunal (the “BCHRT”) alleging that the petitioner had: (1) discriminated against her based upon her sex and (2) sexually harassed her contrary to s. 10 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”). The BCHRT held that the respondent did not meet her burden in demonstrating that she had been discriminated on the basis of sex (as no evidence was led with respect to how the petitioner treated male tenants), but found that she had been sexually harassed by the petitioner. The petitioner was ordered to pay the respondent damages. The petitioner filed a petition for judicial review for an order setting aside the tribunal decision.

The issue on judicial review was whether the tribunal member was incorrect in her interpretation and application of the provisions of the Code; in particular, whether there could be a finding of sexual harassment without a corollary determination that the impugned conduct constituted discrimination based on sex. The parties agreed the review raised a question of law only and thus the standard of review would be based on correctness.

The respondent argued that sexual harassment constitutes a separate and distinct complaint/discrimination based upon sex, i.e., one that does not require proof of differential treatment. The tribunal member agreed. In doing so, the tribunal member relied on the Supreme Court of Canada decision Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 for the proposition that proof of sexual harassment is proof of discrimination based on sex. As such, the tribunal member found that the respondent’s complaint regarding sexual harassment was justified notwithstanding her conclusion that the petitioner failed to prove sexual discrimination.

The Court set aside the decision and remitted the matter back to a re-hearing. The Court concluded that the tribunal member misread Janzen, supra and thus incorrectly applied the law. The Court pointed out that the Court in Janzen, supra did not conclude that sexual harassment, per se, is sexual discrimination. Rather the Court enounced that the general principle in Janzen, supra is that the existence of sexual harassment in the workplace is capable of supporting a finding of differential treatment based upon sex and thus, may establish discrimination contrary to human rights legislation.

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