Underneath the Golden Boy - Robson Hall Faculty of Law

28 Underneath the Golden Boy
above 29 . For example, in Findlay v. Mike’s Smoke and Gifts (#4), 30 an attempt
was made to apply the concept of “hostile environment for women” to have the
display and sale of “adult magazines” in a convenience store held to be
discrimination “with respect to services, goods and facilities.” The complaint was
dismissed on procedural grounds without deciding the merits. I do not deny that
there are circumstances where the use of communicative materials, such as
pornography, can legitimately be deemed a form of harassment, such as when
they are directly thrust on an unwilling recipient. However, the concepts of
“harassment” and “hostile environment” must not be tools which enable
individuals, groups, or official agencies to censor or veto literature, art,
discussions, conversations, or other forms of expression because of their
(perceived) offensiveness, “political incorrectness” or their ideas or viewpoints.
The concept of “hostile environment” was substantially expanded in the
case of Ross v. New Brunswick School Division #15. 31 In that case, the Supreme
Court of Canada upheld a Board of Inquiry’s finding that a school board created
a “poisoned educational environment” for Jewish students by failing to remove a
teacher from his teaching position for his off-duty anti-Semitic expression. It is to
be noted that this decision was based on s. 5 of the New Brunswick Human
Rights Act 32 which prohibited discrimination “with respect to any
accommodation, services, or facilities available to the public” rather than any
legislation dealing with “hate messages”, or which explicitly referred to
“harassment” or “hostile environment”.
The Board of Inquiry ordered the school division to remove Ross from his
teaching position, to offer him alternative employment under certain
circumstances, and to terminate him from his alternative position should he
29
It is of interest that the first Canadian decision holding that sexual harassment constituted sex
discrimination cautioned against applying the concept to interfere with freedom of expression.
In Cherie Bell v. Ernest Ladas (1980) 1 C.H.R.R. D/155, Ontario Board of Inquiry Chairman
O.B. Shime stated at para. 1391 at p. D/156:
“Again, the Code ought not to be seen or perceived as prohibiting free speech. If sex
cannot be discussed between supervisor and employee, neither can other values such as
race, colour or creed which are contained in the Code be discussed. Thus, differences of
opinion by an employee where sexual matters are discussed may not involve a violation of
the Code, it is only when the language or words may reasonably be construed as forming a
condition of employment that the Code provides a remedy. Thus the frequent and
persistent taunting of an employee by a supervisor because of his or her colour is
discriminatory activity under the Code, and similarly the frequent and persistent taunting
of an employee because of his or her sex is discriminatory activity under the code.”
30
21 C.H.R.R. D/19 (Ont. Board of Inquiry, Interim Decision, October 22, 1993).
31
[1996] 1 S.C.R. 825.
32
New Brunswick Human Rights Act, 1985, c.30, s.1.