Does the law protect against post-employment harassment?

In Duverger v 2553-4330 Quebec Inc (Aeropro), 2019 CHRT 18 the Canadian Human Rights Tribunal (“the Tribunal”) recently concluded that post-employment harassment was protected by the Canadian Human Rights Act (“CHRA”).

Mr. Duverger alleged that he was harassed by his supervisor on the basis of his disability and national or ethnic origin. Ultimately, the Tribunal had to determine whether the Complainant met the burden of proof (i.e., is there a relevant prohibited ground of discrimination under the CHRA? Did the alleged harassment have an adverse impact? is there a connection between the protected ground and the adverse impact (was the protected ground a factor in the adverse treatment?)). However, some of the alleged harassment occurred following the end of the employment relationship. As such, the Tribunal had to determine whether it was captured by the provisions in the CHRA. The Tribunal relied on principles of statutory interpretation to determine whether post-employment harassment would be captured by the provision of the CHRA.

Section 14 (1) provides for “Harassment.” Harassment is defined as, “a discriminatory practice” (c) “in matters related to employment” “to harass an individual on a prohibited ground of discrimination.”

The Tribunal concluded that for harassment to occur, it does not have to “have occurred during, throughout, or in the course of the employment period.”

However, this applicability of this case to the Ontario context, in particular the Human Rights Code (“the Code”) is doubtful as the basis of this determination was the interpretation of the CHRA provision. In the Code harassment is defined as “Harassment in employment” as follows:

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In the Ontario context, the interpretation of this section would seem to require a complainant to be an employee subjected to harassing behaviours in the workplace. As such, it is unlikely that a similar decision would be made by the Human Rights Tribunal of Ontario.

Notably, however, human rights legislation is to be interpreted broadly to ensure the interpretation aligns with the purposes of human rights legislation. Human rights legislation has quasi-constitutional status with one of its purposes being to protect the most vulnerable members of society. The Tribunal noted that it is “often the final refuge of the disadvantaged and the disenfranchised” and concluded, “As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.” See Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 SCR 279.

Interestingly, Bill C-65, for example, will amend the Canada Labour Code, to provide a window of three months time for post-employment claims on the basis of workplace harassment and violence. As such, it is plausible, with the purpose of the legislation in mind, that the Human Rights Tribunal of Ontario carves out space for a similar course of action in the Ontario context for post-employment violations of human rights and/or harassment.