juil. 23. 2020

Sexual harassment-based constructive dismissal claim not ousted by Human Rights Code

Deol v Dreyer Davison LLP, 2020 BCSC 771 (CanLII)

Summary: A claim that is based on facts that could amount to discrimination under BC's Human Rights Code may proceed to court so long as the cause of action is separately recognized at common law.

Background: In Deol v. Dreyer Davison LLP, the plaintiff alleged that she was the subject of inappropriate sexual verbal remarks and physical contact during her employment with the defendant. As a result of the alleged sexual harassment, the plaintiff brought a constructive dismissal action against the defendant. The defendant denied the plaintiff's allegations.

The defendant applied to have the plaintiff's claim struck out on the basis that it fell within the exclusive jurisdiction of the Human Rights Tribunal. It was not disputed that:

  • The plaintiff's allegations would, if proven, amount to discrimination under the Human Rights Code; and
  • Claims of discrimination under BC's Human Rights Code cannot be pursued at court, but instead must be dealt with at the Human Rights Tribunal.

Because discrimination claims under the Human Rights Code can only be pursued through the Human Rights Tribunal, the defendant applied to have the plaintiff's claim struck out. In the defendant's view, the true character of the plaintiff's claim was a discrimination claim. The defendant relied on earlier BC Supreme Court actions that had been dismissed because the claims were within the exclusive jurisdiction of the Human Rights Tribunal.

Issue: Can a plaintiff sue for damages if the defendant's conduct would amount to discrimination under the Human Rights Code?

Decision: The Court dismissed the plaintiff's application to strike the plaintiff's claim, finding that the BC Human Rights Tribunal does not have exclusive jurisdiction over a claim just because the same facts could support a claim of discrimination under the Human Rights Code.

The fact that the plaintiff's claim was based on facts that could also support a discrimination claim did not mean that the court's jurisdiction was ousted. Importantly, the Court noted that the same set of facts may give rise to different legal claims:

[T]he common law courts are very familiar with the principle that the same facts may be the source of different legal rights, or legal rights sounding in different causes of action.

If the plaintiff had sought a remedy that was only available under the Human Rights Code, her claim (or that portion of her claim) presumably would have been struck out. In BC, it is clear that the Human Rights Tribunal would be the proper forum for such a complaint. But instead, the plaintiff sought remedies that are available under the common law, separate and apart from claims available under the Human Rights Code. The Court concluded that the law does "not go so far as to make a recognized claim at common law outside of the jurisdiction of the superior courts solely on the basis that there is an allegation of discriminatory conduct."

At the time of the application, the plaintiff's claim was scheduled to proceed to a 10 day jury trial in March, 2021, for a decision on its merits.

Author: Brendan Harvey is an employment lawyer in Vancouver, BC practicing on the North Shore with Yeager Employment Law. This article first appeared at www.onthecase.ca.