In a recent British Columbia case, the court allowed an employee’s claim for constructive dismissal based on sexual harassment to proceed, despite the defendants’ argument that her claim was based in human rights legislation and the court did not have jurisdiction to hear the case.

Employee Leaves Job Due to Sexual Harassment

The employee is a lawyer who worked at a law firm in British Columbia.

The employee claimed that throughout her employment at the law firm, she was subjected to sexually inappropriate verbal communications and physical contact by one of the firm’s two partners, which included the partner regularly giving unwanted kisses to female staff (including the employee), propositioning the employee to come to his hotel room at a legal conference, and opening her blazer and commenting on her body.

Additionally, the employee claimed that she attempted to address the conduct but her concerns were dismissed without any meaningful remedial steps. For instance, she claimed that the firm’s other partner advised her to “tough it out.”

The employee argued that the partner’s behaviour created an objectively intolerable working environment, which was exacerbated by the law firm’s inadequate response when dealing with his misconduct.

As a result, the employee claimed that she had been entitled to treat her employment contract with the law firm as repudiated and that she was constructively dismissed as a result of this repudiation. She sought damages for breach of contract (constructive dismissal) as well as remedies in aggravated and punitive damages.

Parties’ Positions

The law firm partners accepted that, if proven, the allegations would amount to sexual harassment. They argued, however, that the court had no jurisdiction to consider a civil action for damages arising from allegations of sexual harassment, and the claim should therefore be struck. Specifically, they argued that recovery for losses caused by sexual harassment fell exclusively within the jurisdiction of the Workers’ Compensation Board (“WCB”) for tortious or injurious conduct, or the British Columbia Human Rights Tribunal (“BCHRT”) for discriminatory conduct.

The employee agreed that she was seeking damages related to sexual harassment, but stated that it was actionable in her case because the sexual harassment she experienced amounted to the repudiation of her employment contract, giving rise to a claim in constructive dismissal. In pleading constructive dismissal, the employee argued she was pleading rather than obfuscating her true cause of action. She stated that the damages she sought, including both aggravated and punitive damages, properly flowed from her claim in constructive dismissal.

Court Allows Employee’s Claim to Proceed

First, the court found that the employee had sufficiently set out an action for constructive dismissal, because she claimed that the manner in which her employer treated her made her continued employment intolerable. The court stated:

“Many of the particulars are described as instances of sexual harassment and a failure to address it. Whether those particularized incidents constitute harassment, sexual harassment, or something else altogether, I consider that they are relevant to the consideration of whether [the employee]’s employer is responsible for creating or perpetuating an intolerable working environment that amounted to a repudiation of [the employee]’s employment contract.

Generally, damages for wrongful dismissal are awarded in lieu of notice […]. Therefore, [the employee]’s claim for “damages for breach of contract” are properly pled in relation to this articulated claim. In addition, while punitive damages are subject to special considerations in the employment law context, they are an established head of damage in wrongful dismissal claims, and so this pleading does not detract from the characterization of [the employee]’s claim as one in constructive dismissal.”

Second, while the court acknowledged that the BCHRT has exclusive jurisdiction to consider claims in compensation and other remedies for discrimination, including for sexual harassment, it found that the BCHRT did not have exclusive jurisdiction to consider the employee’s claim because she sought remedies that were available under the common law, separate and apart from claims available under human rights legislation. Similarly, the court found that the claim had been adequately pled in contract for constructive dismissal and that it did not fall within the exclusive jurisdiction of the WCB.

The court therefore concluded that its jurisdiction over the claims for damages in constructive dismissal was not subsumed by either the WCB’s jurisdiction to award compensation for mental injuries in cases of harassment or the BCHRT’s jurisdiction to provide compensation and other remedies in cases of discrimination, stating:

“A distinct pleading is available where the conduct of the employer or tolerated by the employer amounted to a repudiation of the employment contract.”

As a result, the court rejected the law firm partners’ request that the employee’s claim for constructive dismissal be struck. However, it did strike the claim against the partner personally because the claim in constructive dismissal was not a claim against him personally, but rather against the law firm as an employer.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.