Since the early 1980s, plaintiffs have been precluded from bringing court actions solely predicated on suffering discrimination or harassment under human rights legislation. Such complaints have been held to be properly made before human rights tribunals, which have different rules and procedures than the traditional court system. Most provincial human rights statutes expressly provide that free-standing infringement claims cannot go to court.
However, there are circumstances where parties may prefer the procedures and nuances (and in an ironic reversal more recently, the speed) of the court system. In such cases, the framing of the complaint is critical in determining whether the court has jurisdiction to hear the case.
In Lewis v Westjet Airlines Ltd, the plaintiff alleged that her employer had failed to fulfill an “Anti-Harassment” promise that formed part of her employment contract. She alleged that the decision not to enforce the promise led to her and her co-workers being exposed to harassment and discrimination, and that there were economic reasons and rewards reaped by the employer by having done so. She proposed that her action should be heard as a class action as her co-workers allegedly suffered similar wrongs.
The employer brought a motion to strike the pleadings at an early stage, arguing that the action dealt with discrimination and harassment exclusively and ought to be heard by a human rights tribunal rather than a court.
The employee replied that the case was not about discrimination but rather about a breach of contract. Since the discrimination and harassment was merely the mechanism of the breach, rather than the underlying wrong, the complaint was a contractual dispute and should be adjudicated by the Court.
The Court agreed with the employee and dismissed the employer’s preliminary motion.
Interestingly, the court did not suggest it had exclusive jurisdiction over the complaint. Indeed, it explicitly acknowledged that the complaints could have been brought before a human rights tribunal. However, in the absence of some reason that the court could not hear the action, the plaintiff was free to bring it before the court.
The court acknowledged that it is possible that ultimately, the matter could be determined to be unrelated to the contract and that a court could ultimately find that it did not have jurisdiction. However, it was impossible to make that determination at an early stage of proceedings.
The employer also argued that the damages and remedies being sought by the employee were too vague for a court to realistically grant. The court found that while that certainly could be the case, again it was important to wait for a complete record that a trial could offer before making that determination.
By framing the matter at issue as a breach of contract by way of discrimination, the Court of Appeal avoided the caselaw that precludes the litigation of purely human rights matters in the courts, rather than before human rights tribunals. Unfortunately, taken to its logical end this decision could mean that almost any discrimination in employment could constitute a breach of contract and be litigated in the courts. After all, many cases have held that the exposure of an employee to discrimination and harassment may constitute a breach of contract and amount to constructive dismissal.
If the Court’s rationale were adopted elsewhere, it would be difficult to conceive of any workplace harassment and discrimination situations that could not be heard by a court as a “breach of contract”. This would represent a significant sea-change in the law.
Of course, unlike the federal Canadian Human Rights Act (which applied to these federally regulated airline employees), provincial statutes by and large expressly prohibit civil actions based on free-standing human rights violations. Simply reframing an alleged human rights violation into a mechanism of contractual breach would arguably render such legislative provisions devoid of meaning – a result that courts must generally avoid when interpreting statutory language.
There is a case making its way through Ontario’s courts right now, concerning provincially regulated civil servants, where this issue will likely be decided. Time will tell whether courts will reconsider the otherwise consistent approach of rejecting such claims in jurisdictions and employment relationships governed by express legislative restrictions on free-standing infringement claims.
It remains to be seen whether the employer will seek leave to appeal this decision to the Supreme Court.
This post was first published on First Reference Talks.