In the federal jurisdiction, there are several different categories of employers, and a plethora of legislation and regulation that governs how employers seek to prevent and respond to sexual harassment in the workplace. This section provides an overview of that legislation that is relevant to civilian employees in federal workplaces, with particular attention to definitions and jurisdiction in each. Later sections address the legal and regulatory framework that covers members of the Canadian Forces and constables in the Royal Canadian Mounted Police, and the mechanisms created or required by all relevant laws and regulations.

A. Overview

Parliament has jurisdiction over employment conditions and labour relations in the public service and in workplaces that are engaged in activities that come under section 91 of the Constitution Act, 1867.[44]

One of the leading texts on employment in the federal public sector provides a useful outline of the public service for purposes of regulating working conditions:[45]

The term “public service” is defined in both the Public Service Labour Relations Act and the Public Service Employment Act by reference to certain schedules of the Financial Administration Act (FAA). The entire “public service” is comprised of positions in or under Schedules I, IV, and V of the FAA. The “public service” is then divided into two parts: the “core public administration” (those positions in or under Schedules I and IV of the FAA) and “separate agencies” (those positions in or under Schedule V of the FAA).

The employer for the “core public administration” or Schedules I and IV of the Financial Administration Act is the Treasury Board. The employer for those employed by “separate agencies” (Schedule V), is the agency itself. A separate statute governs employment relations for those employees. For example, the Canada Revenue Agency and the Canadian Food Inspection Agency are employers pursuant to the Canada Customs and Revenue Agency Act and the Canadian Food Inspection Agency Act respectively.

The Royal Canadian Mounted Police Act and the National Defence Act apply to members of the RCMP and the CF.

Schedule III of the Financial Administration Act lists crown corporations, which are subject to the Canada Labour Code (the Code) with the employer being the corporation.

The Parliamentary Employment and Staff Relations Act governs employment for parliamentary employees.[46] The Treasury Board has no jurisdiction over employment of parliamentary employees. Each chamber is responsible for its own employees, and each parliamentarian is the employer of his or her staff persons.

In addition, there are statutes of general application that may have an impact on employment and labour relations in the public sector or public service, including the Canadian Human Rights Act, the Privacy Act, the Public Servants’ Disclosure Protection Act, the Public Sector Equitable Compensation Act and other acts.

Finally, employment and labour relations in the federally regulated private sector are governed by the Code.

B. Statutes

There are two primary pieces of federal legislation that expressly address sexual harassment in federally regulated workplaces: the Code and the CHRA. The Code defines sexual harassment, establishes the rights of employees and obligations of employers, and sets out the required contents of a policy against sexual harassment. The CHRA prohibits sexual harassment in the workplace and prescribes a mechanism for hearing, investigating, and providing remedies for complaints. Also, while it does not address sexual harassment directly, the Public Service Labour Relations Act (PSLRA) is important in the context of grievances relating to sexual harassment for public servants subject to a collective agreement. For parliamentary employees, the Parliamentary Employment and Staff Relations Act is the applicable statute that governs terms and conditions of employment and labour relations.

Harassment, whether sexual or not, may become a criminal offence if it causes the harassed person to fear for their safety or that of others. Section 264 of the Criminal Code sets out the elements of “criminal harassment”, an offence that includes the behaviour commonly known as stalking.[47]

1. Canada Labour Code

a. Overview

The Code governs working conditions and labour relations in federally regulated private sector workplaces and in Crown corporations. The Code specifically defines these workplaces as those that do “work, undertaking or business that is within the legislative authority of Parliament.”[48] Workplaces that are under the authority of the Code include those related to navigation and shipping, railways and canals that extend beyond a single province, international and interprovincial ferries, air transport, radio broadcasting, banks and works that are beyond the legislative authority of a single province.

The Code defines sexual harassment as “any conduct, comment, gesture or contact of a sexual nature that is likely to cause offence or humiliation to any employee; or that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on any opportunity for training or promotion.”[49] It states that all employees are entitled to a workplace free of sexual harassment and requires employers to “make every reasonable effort to ensure that no employee is subjected to sexual harassment.”[50] Under the Code, employers must, after consulting with employees, issue a policy statement on sexual harassment and make it known to employees. The Code also requires that the policy include statements that:

• define sexual harassment substantially the same way as in the Code; and
• explain how to bring complaints of sexual harassment to the employer.

As well, the Code specifies that:

• every employee is entitled to employment free of sexual harassment;
• the employer will make every reasonable effort to prevent sexual harassment;
• the employer will take any disciplinary measures they deem appropriate against any person under the employer’s direction who subjects any employee to sexual harassment;
• the employer will not disclose the complainant’s name or the circumstances of the complaint to any person except where necessary for investigating the complaint or taking disciplinary measures; and
• the employer will inform employees of the discriminatory practices provisions of the Canadian Human Rights Act that pertain to rights of persons to seek redress under that Act in respect of sexual harassment.[51]

As the last point suggests, the Code does not contain its own provisions on remedies, but rather refers complainants to the CHRA.

Amendments in 2008 to the Code under Occupational Health and Safety Regulations address workplace violence[52] and also offer remedies for sexual harassment in the workplace. These regulations[53] make explicit the obligations of employers and employees in preventing and addressing workplace violence. While they do not include a specific reference to sexual harassment, the definition does include psychological violence. Officials responsible for the administration of the Code confirmed that “it can also be applied to sexual harassment.”[54]

In order to be in compliance with these regulations, employers must educate their employees “in any skills that would allow them to identify, prevent, or avoid any workplace violence.”[55]

b. Witness Information and Observations

Government officials pointed out to the Committee a difference between requirements of public service versus federally regulated employers: “[i]n comparison with the federal public service, federally regulated workplaces are required to have a policy that addresses sexual harassment specifically, while the Treasury Board policy on harassment prevention and resolution addresses all types of harassment.”[56]

The Committee heard that compliance activities related to sexual harassment and violence prevention by federal officials responsible for the Code’s implementation “range from proactive counselling and inspections to reactive investigations of employees’ complaints, and finally, as a last recourse, to prosecutions.”[57]

Witnesses, particularly from unions representing employees in federal workplaces, described the broader scope of the violence prevention regulations as being a preferable approach, particularly with respect to the open-ended timing of a complaint, which can be filed at any point if the situation putting workers at risk persists and that no complaint is required to launch an investigation.[58] As well, the Committee heard that these regulations require employers to take preventive as well as remedial actions to correct any situation reported to them.[59]

In a written submission to the Committee, Dave Ritchie, General Vice‑President for Canada, International Association of Machinists and Aerospace Workers, recommended that:

[T]here should be a further legislated requirement for all federal workplaces to have an active policy against workplace sexual harassment, including:

• A clear, publicly-posted anti-harassment policy in every workplace – with an ongoing communications component – brochures, posters, etc. …[and]
• Onsite training, for all management and workers, on how to deal to deal with harassment.[60]

The same brief recommended “that the definition of harassment in the Code should be expanded, as in Quebec, to explicitly include psychological harassment.”[61]

Another witness suggested a joint worker-management human rights committee in every workplace to address sexual harassment.[62]

Paula Turtle, Canadian Counsel for the United Steelworkers, told the Committee that:

[T]he issue of workplace harassment cannot be addressed without addressing workplace violence, including workplace violence connected to domestic violence. Workplace violence may be separate from but may also arise from a source outside of the workplace.[63]

She continued: “given the stigma associated with domestic violence, especially if the victim and aggressor are colleagues, provisions that relate specifically to domestic violence are required.”[64]

2. Canadian Human Rights Act

a. Overview

The CHRA applies more broadly than the Code to all “matters coming within the legislative authority of Parliament.”[65] The Supreme Court of Canada has held that the CHRA applies “to all employees of the federal government, including those working for Parliament.”[66]

The CHRA addresses sexual harassment in two stages; first, it prohibits harassment as a discriminatory practice:

14.  (1) It is a discriminatory practice,

• (a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
• (b) in the provision of commercial premises or residential accommodation, or
• (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.[67]

It then goes on to specify that sexual harassment is “harassment on a prohibited ground of discrimination.”[68]

The CHRA also establishes the Canadian Human Rights Commission (CHRC). The CHRC hears complaints of discriminatory practices. More information on the complaint processes is provided in the section of the report “Official Complaints Processes”.

b. Witness Information and Observations

The Acting Commissioner of the CHRC told the Committee that 332 complaints in the previous 5 years were related to sexual harassment, more than 85% of which were filed by women.[69] He also pointed to the limitations of existing policies and laws, as they do not serve to prevent harassment, nor can they protect those who are unwilling to report such incidents.[70]

The Committee also heard that of 600 complaints referred to the Canadian Human Rights Tribunal in the same period, 36 were related to employment-related harassment and discrimination based on sex.[71] Where the Tribunal finds that an individual, government department or a federally regulated corporation is found to have discriminated against or sexually harassed an individual, it can issue remedial orders for training, revise existing policies, or offer monetary payment to the complainant.[72] The Committee also heard that the Tribunal is unable to award legal costs to a victim of harassment, which could mean that the expense of pursuing this remedy could exceed any awards.[73]

Witnesses told the Committee that the CHRC can refuse to refer a complaint to the Tribunal for several reasons. These include the availability of other forms of recourse, including a grievance or the process identified in the Treasury Board policy for federal public servants;[74] or the offer of what the CHRC considers a reasonable settlement.[75] Several witnesses confirmed that referrals to the CHRC could be a late or last step in the process of pursuing a harassment complaint.[76]

Witnesses also told the Committee that the lengthy investigation process could be a deterrent to individuals using the CHRC and Tribunal as a means of pursuing a sexual harassment complaint.[77]

3. Public Service Labour Relations Act

While the Public Service Labour Relations Act does not address the issue of sexual harassment directly, it regulates the relationship between unionized federal workers and their employer for purposes of collective bargaining. Specifically, the PSLRA sets out the framework for labour relations and collective bargaining between the Treasury Board and the federal employees under its authority. With respect to sexual harassment, it sets out the steps a complainant would have to take if he or she were unsatisfied with the results of a grievance he or she presented. More discussion and witness comments on the PSLRA appear below in the “Collective Agreements/Grievances” section.

C. Case Law

Much of sexual harassment case law comes from tribunal decisions, primarily the Public Service Labour Relations Board, the Canada Industrial Relations Board, and the Canadian Human Rights Tribunal, which are mandated by statute to determine matters relating to the workplace, and from the Federal Court, which hears applications for judicial review from federal tribunals. The Supreme Court of Canada has had occasion to hear a number of appeals relating to sexual harassment, but two cases, Robichaud v. Canada (Treasury Board) and Janzen v. Platy Enterprises, have been particularly influential in the development of the Canadian case law on the topic.

In Robichaud v. Canada (Treasury Board), released in 1987,[78] the Supreme Court found that an employer, including the Crown, may be held liable for the discriminatory actions of its employees. In its decision, the Court quoted Justice Thurgood Marshall of the Supreme Court of the United States:

A supervisor’s responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive, workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases it is the authority vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer’s authority that he is able to impose unwelcome sexual conduct on subordinates.[79]

Two years later, the Supreme Court held in Janzen v. Platy Enterprises that sexual harassment constitutes discrimination on the basis of sex.[80] Chief Justice Dickson, speaking for a unanimous Court, provided a definition of sexual harassment, which remains the leading definition in the Canadian case law:[81]

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is … an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

D. Policy Framework

Legislation always carries more legal authority than policy. Nevertheless, some policies may seem more immediately relevant to employees because they are more familiar with policies, or because policies have a more direct application in their day-to-day experiences at work. Courts have found that whether a policy is legally binding may depend on whether the policy was enacted under a permissive or mandatory provision of the enabling statute.[82] In other words, the legal authority of a policy may depend on whether the provision of the statute under which the policy was enacted required the creation of that policy, or simply authorized or allowed it.

1. Treasury Board Policies

a. Policy on Harassment Prevention and Resolution

As the employer of the public service, the Treasury Board is responsible for setting guidelines against harassment for a significant portion of federal employees. This authority is derived from the Financial Administration Act, which establishes the Treasury Board and sets out its responsibilities. Subsection 7(1)(e) authorizes (or allows) the Treasury Board to “act for the Queen’s Privy Council for Canada on all matters relating to human resources management in the federal public administration.” Subsection 11.1(1)(i) further authorizes the Treasury Board to “establish policies or issue directives respecting the prevention of harassment in the workplace and the resolution of disputes relating to such harassment.” In reference to the discussion above, it is significant that the language of this provision is permissive, not mandatory. Courts have held that if the Treasury Board had intended for a given policy to have the same legal authority as legislation, it could have been created as a regulation under the enabling statute.[83]

In 2001, the Treasury Board released a harassment policy that applied to the federal public service, the Policy on Prevention and Resolution of Harassment in the Workplace (2001 policy). On 1 October 2012, the Treasury Board replaced the 2001 policy with the Policy on Harassment Prevention and Resolution (2012 policy) and the associated Directive on the Harassment Complaint Process. Unlike the Code and the CHRA, the Treasury Board policies deal with harassment generally, and make no direct reference to sexual harassment.

The 2001 policy mandated compliance: “[d]epartments/organizations must meet the requirements of this policy.” The 2012 policy contains no such statement, although it does state that the Treasury Board will monitor results: “[t]he achievement of expected results by deputy heads will be assessed by Treasury Board of Canada Secretariat.”

While the 2001 policy was a self-contained document, the 2012 policy must be read in conjunction with the directive, mentioned above, and refers to several guides and frameworks, many of which were under revision or inaccessible at the time of this study. Without having access to the revised guides and frameworks, it is difficult to outline the full scope of the 2012 policy. For this reason, and because it would seem that complaints brought before 1 October 2012 will still fall under the 2001 policy, this report deals primarily with the 2001 policy, while noting differences between the policies where relevant.

b. Application

The 2001 policy applied only to “employees”, which means that many federal workers were exempt from the policy. Individuals exempt from the policy included the following:

• a person appointed to a statutory position by the Governor in Council;
• a person locally engaged outside Canada;
• a person working part time, where the time amounts to less than a third of full time;
• a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members;
• Canadian Security Intelligence Service employees other than those whose position is of a clerical or secretarial nature;
• a person employed on a casual basis;
• a person employed on a term basis for under three months;
• a person employed by the Public Service Labour Relations Board;
• a person who occupies a managerial or confidential position; and
• a person who is employed under a program designated by the employer as a student employment program.[84]

The 2001 policy stated that while managers are not covered under the policy, they were expected to abide by it. Although it is not clear to what extent non-employees were protected, the policy required that “[c]orrective action … be timely in all situations of harassment, whether it involves employees or other persons working for the Public Service.” In 2001, the Treasury Board developed the Non-represented Employee Advisors Program to assist unrepresented employees through their complaint process.[85] However, the program no longer exists.[86]

The 2012 policy appears to apply to a broader group of employees. Unlike the 2001 policy, the 2012 policy does not explicitly list exempted employees. The policy applies to several classes of employees that had been exempt previously. Section 2.1 of the 2012 policy states that it applies to:

[T]he core public administration which includes the organizations named in Schedule I and the other portions of the federal public administration named in Schedule IV of the Financial Administration Act unless excluded by specific acts, regulations or Orders in Council.

“Employee” is defined in the directive as follows:

[F]or the purpose of this directive, employee refers to those employed as indeterminate employees, part-time employees, term employees, seasonal employees, casual workers, students and part-time workers in organizations defined in section 2.1.

The 2012 policy does not explicitly state whether it applies to the remaining classes of employees exempt under the 2001 policy, but it does anticipate the exclusion of certain employees:

For individuals who are not employees as defined in Appendix A to the policy, managers must address any allegation of harassment from these individuals in accordance with the spirit of this directive.

It is important to note that the Treasury Board policies are simply instruments the Treasury Board has chosen to use to address sexual harassment in the workplace. They cannot purport to limit employees’ legislated rights.[87] Although the policies exclude certain employees, all employees retain their rights under the CHRA to bring a complaint to the CHRC.

c. Definition of Harassment

The 2001 policy defined harassment as follows:

[A]ny improper conduct by an individual, that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises any objectionable act, comment or display that demeans, belittles, or causes personal humiliation or embarrassment, and any act of intimidation or threat. It includes harassment within the meaning of the Canadian Human Rights Act.[88]

The 2012 policy definition is quite similar but includes some additions, which are in italics:

[I]mproper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction).

Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.

While neither policy explicitly includes or defines sexual harassment, both definitions necessarily include sexual harassment, as they refer to the CHRA, which includes an explicit definition of sexual harassment. Cindy Viau, Director’s Advisor at the Quebec Help and Information Centre on Harassment in the Workplace, told the Committee that “it would be a very good start if the federal level had a policy in which things were clearly defined, a policy that would include the definition of what sexual harassment is.”[89]

Recommendation 1

The Committee recommends the development of a policy at the federal level to clearly define sexual harassment, and that it be included in any policies by Treasury Board on sexual harassment for the federal workplace.

d. Witness Information and Observations

Officials from the Treasury Board Secretariat (TBS) told the Committee that the 2012 “policy instruments give deputy heads the flexibility to tailor harassment prevention and resolution mechanisms and practices to their operational needs … [and] emphasize the need for organizations to restore the workplace following an allegation of harassment.”[90] The Committee also heard that the newer policy puts a greater emphasis on informal resolution processes (addressed in greater detail later in this report), and on preventive activities.

Other witnesses described differences between the 2001 and 2012 policies, including in the definition of sexual harassment. One witness pointed out that the 2012 policy expands the scope of the workplace, and that the guidance documents associated with this new policy as to what behaviours constitute harassment and the manager’s obligations with respect to harassment were not yet available.[91]

Robin Kers, National Representative of the Union of Solicitor General Employees, Public Service Alliance of Canada (PSAC), described the new policy as “dramatically weakened”.[92]

He told the Committee:

The old policy granted a complainant the right to review a final report before it became final and to provide additional witnesses, where necessary, documentation, and clarification. The new Treasury Board policy has eliminated that.[93]

Mr. Kers recommended that all departments should be required to provide this opportunity to complainants in any harassment complaint, including sexual harassment.[94]

Mr. Kers also pointed out that the Treasury Board policy does not guarantee a right to representation through the complaint process: “… with the internal harassment complaint process, there is no right to representation under Treasury Board policy and guidelines, but under the grievance process, there is a right to representation.”[95]

One witness recommended that human resources managers receive adequate training to take the next steps following an investigation of harassment under the Treasury Board policy.[96]

One witness who sat on the bargaining agents’ committee that negotiated the policy with Treasury Board questioned whether the revised Treasury Board policy complies with the Violence in the Work Place amendments to the Occupational Health and Safety Regulations of the Code.[97]

e. Values and Ethics Code for the Public Sector

A Treasury Board official told the Committee that the harassment prevention policy is “tied” to the value of respect for people, articulated in the Values and Ethics Code for the Public Sector, introduced in April 2012.[98] It was described as “an opportunity for promotion of respect and development of related skills, mainly empathic listening, difficult conversations, emotional intelligence, and so forth, for all employees and especially managers,”[99] and as a condition of employment for all public servants.[100]

The Committee heard from other public officials of implementation of more specific values and ethics code and/or program that applied to their department or agency more specifically.[101] The Committee also learned that the Canada School of Public Service (CSPS) offers training specific to the Values and Ethics Code for the Public Sector.[102]

2. Other Policies

Both the Code and the Treasury Board policies require employers under their respective authorities to establish individual departmental policies against harassment. Each requires that the subsidiary policies conform to minimum requirements set out by the Treasury Board policy and the Code, but the departmental policies may go beyond these basic requirements. This explains considerable variations among subsidiary policies.

Some policies are unique to their departments or agencies. Neither the Code nor the Treasury Board policies applies to RCMP officers, for example. The RCMP is discussed in greater detail later in this report.

E. Collective Agreements/Grievances

The last part of the sexual harassment framework that applies in many federally regulated workplaces, and sometimes the most important for unionized employees, are collective agreements. As noted above, the Committee heard that a grievance process provides the complainant with the right to representation, and that this is not guaranteed in the Treasury Board complaint process.[103]

A collective agreement, negotiated by an employer and an employees’ organization, or a union, sets out many of the terms and conditions of employment.[104] Under section 208 of the PSLRA, employees may present individual grievances “if they feel aggrieved as a result of any occurrence or matter affecting his or her terms and conditions of employment.”

Under the CHRA, the CHRC has the option of declining to hear a complaint if it finds that the complainant ought to have pursued other reasonable review or grievance procedures. This makes a collective agreement particularly significant in the sexual harassment context as a grievance may represent a necessary first step to other avenues of recourse. Also, for workplaces subject to the PSLRA, an employee is barred from taking the complaint directly to court,[105] and is required to exercise his or her right to present a grievance under a collective agreement instead.

There are also options under the PSLRA beyond the individual grievance. For instance there are group grievances, where a bargaining agent (the union or employee organization representing a bargaining unit, which is the group of employees to which a collective agreement applies) may present a grievance on behalf of employees who feel aggrieved by the interpretation of part of the collective agreement. There are also policy grievances, where the bargaining agent may present a grievance in relation to the general application or interpretation of the collective agreement.

Bargaining agents may refer a grievance to adjudication if they are unsatisfied with the result of the grievance and the grievance relates to a breach of the collective agreement.[106] The matter then proceeds to the Public Service Labour Relations Board (the Board) for adjudication. When this happens, the CHRC must be given notice and may make submissions before the Board. The adjudication is then conducted either by a single adjudicator or by a three-member panel of members of the Board. The adjudicator or panel is empowered to interpret and apply the CHRA, meaning that remedies would be the same as those discussed above in reference to the CHRA process.

F. Non-unionized Employees

As discussed above, the CHRA is a statute of general application that protects all federally regulated employees. Non-unionized employees may bring a complaint to the CHRC. They are also entitled to present grievances under the PSLRA, although if they are unsatisfied with the results of a grievance, their only option is to apply to Federal Court and seek a judicial review of either the CHRC’s decision not to refer a matter to the Tribunal, or a Tribunal decision.[107]

Unlike most unionized employees, non-unionized employees are free to seek redress through the courts. Employees might argue that the employer fundamentally breached the employment contract by creating an intolerable environment.[108]

They may seek damages for constructive dismissal, which the Supreme Court of Canada describes as follows:

[W]here an employer unilaterally makes a fundamental or substantial change to an employee’s contract of employment – a change that violates the contract’s terms – the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider himself or herself constructively dismissed.[109]