376 THE ADVOCATE
VOL. 77 PART 3 MAY 2019
tive action when there has been a breach of those norms. In the latter event,
would not an employee victimized by improper conduct by a fellow
employee have a “legitimate” expectation that his or her employer would
take concrete steps to deal with that misconduct?
Finally, at least where there is evidence of such contractual terms, it is
simply sound policy to recognize concurrent jurisdiction (as between the
courts and human rights tribunals) so that employment disputes are not
needlessly bifurcated (or even trifurcated38) with the attendant complexity,
additional expense and delay that entails. One forum should be enough,
and the courts are well suited to be that forum.38
1. Vorvis v Insurance Corporation of British Columbia,
1989 1 SCR 1085. For recent decisions where both
aggravated and punitive damages were awarded,
see Strudwick v Applied Consumer & Clinical Evaluations
Inc, 2016 ONCA 520 and Ruston v Keddco
MFG (2011) Ltd, 2019 ONCA 125.
2. 2019 BCCA 63 Lewis, affirming Lewis v WestJet
Airlines Ltd., 2017 BCSC 2327 Lewis BCSC.
3. 1981 2 SCR 181 Bhadauria.
4. Legislatures across the country have created, by
express legislative provisions, various “statutory”
torts. See e.g. Manitoba Child Sexual Exploitation
and Human Trafficking Act, CCSM c C94, s 18; B.C.
Civil Rights Protection Act, RSBC 1996, c 49, s 2(1);
B.C. Engineers and Geoscientists Act, RSBC 1996, c
116, s 27(1); B.C. Opioid Damages and Health Care
Costs Recovery Act, SBC 2018, c 35, s 2(1); B.C. Privacy
Act, RSBC 1996, c 373, s 1(1) (Saskatchewan,
Manitoba, and Newfoundland and Labrador have
enacted similar provisions); Newfoundland and
Labrador Intimate Images Protection Act, RSNL
2018, c I-22, s 4(1) (Alberta, Manitoba and
Saskatchewan have enacted similar laws); Yukon
Torture Prohibition Act, RSY 2002, c 220, s 1.
5. Bhadauria, supra note 3 at 183.
6. Ibid at 195.
7. See e.g. Ian A Hunter, “The Stillborn Tort of Discrimination”
(1982) 14:1 Ottawa L Rev 219; Harry Kopyto,
“The Bhadauria Case: The Denial of the Right to Sue
for Discrimination” (1982) 7 Queen’s LJ 144; Beatrice
Vizkelety, “Discrimination, the Right to Seek Redress
and the Common Law: A Century-Old Debate” (1992)
15:2 Dal LJ 304; Jeffrey Radnoff & Pamela Foy, “The
Tort of Discrimination” (2002) 26:3 Advocates’ Q
309. See also Gillian Demeyere, “Common Law
Actions for Sexual Harassment: The Jurisdiction Question
Revisited” (2002–2003) 28:2 Queen’s LJ 637;
Geoffrey England, “Evaluating the Implications of
Honda Canada v. Keays” (2008) 14:3 CLELJ 329.
8. For example, by allowing discrimination claims
based on the Charter to proceed (see Ayangma v
Eastern School Board, 2000 PESCAD 12), by allowing
discrimination claims asserted in the context of
constructive dismissal or wrongful dismissal actions
to proceed (see Attiboudeaire v Royal Bank of
Canada, 1996 CanLII 1411 (Ont CA); Gnanasegaram
v Allianz Insurance Co of Canada, 2005
CanLII 7883 (Ont CA); Burgess v Yellow Pages
Group Co, 2012 NSSC 390; Garner v Bank of Nova
Scotia, 2015 NSSC 122), by allowing claims where
the alleged discrimination was the foundation for an
award of aggravated or punitive damages (see
Greenwood v Ballard Power Systems Inc, 2004
BCSC 266), or by finding that the alleged discrimination
may be characterized as evidence of a separate
legally recognized tort or of a contract breach
(see Sulz v Minister of Public Safety and Solicitor
, 2006 BCCA 582). In Mathew v Kinek , 2008 NBQB 371, a wrongful dismissal
claim, the plaintiff claimed his former employer “discriminated
against him by engaging in salary discrimination
and duties discrimination, by allowing its
employees to make the discriminatory remarks and
by failing to discipline employees who engaged in
discriminatory conduct towards him” (para 73).
These claims were dismissed, not because the court
had no jurisdiction to award damages for discriminatory
conduct (indeed, the court reviewed the
plaintiff’s assertions in some detail) but, rather,
because the plaintiff failed to prove his assertions.
9. 2008 SCC 39 Honda.
10. See e.g. Smith v Canada (Attorney General), 2006
BCCA 237; Ahmed v Edmonton Public School
Board, 2008 ABQB 351; Jaffer v York University,
2010 ONCA 654; King v Ryerson University, 2015
ONCA 648; and Schulz v Beacon Roofing Supply
Canada Company, 2016 BCSC 1475.
11. 2003 SCC 42 Parry Sound.
12. Ibid at para 49.
13. Labour Relations Code, RSBC 1996, c 244, s 89(g):
“For the purposes set out in section 82, an arbitration
board has the authority necessary to provide a final
and conclusive settlement of a dispute arising under a
collective agreement, and without limitation, may …
(g) interpret and apply any Act intended to regulate
the employment relationship of the persons bound by
a collective agreement, even though the Act’s provisions
conflict with the terms of the collective agree-