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Sexual harassment counts as discrimination, B.C. court rules

Frances Twitty/iStockphoto

Female tenants have the same rights to be free of sexual harassment as women in the workplace, the British Columbia Appeal Court says in a decision that concludes such harassment is a form of sexual discrimination.

The court ruled Thursday in a human rights case involving a Vancouver woman who was verbally and physically harassed by her landlord.

The B.C. Human Rights Tribunal concluded the harassment amounted to discrimination and ordered the landlord, John Friedmann, to pay his former tenant, Noemi MacGarvie, $10,000 in compensation.

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The B.C. Supreme Court, however, threw out that decision, concluding not every case of sexual harassment is discriminatory.

But the B.C. Court of Appeal sided with Ms. MacGarvie and upheld a human rights tribunal's decision. The court suggested the B.C. Supreme Court judge misinterpreted earlier decisions that have repeatedly concluded sexual harassment is inherently discriminatory.

"A female tenant is entitled to quiet enjoyment of her apartment free from sexual harassment in the same way that a female employee is entitled to a work environment free of sexual harassment," Justice David Tysoe wrote on behalf of the three-member appeal panel.

"In a sexual harassment case, the very nature of the sexual harassment can be sufficient to establish that the gender of the complainant was a factor in the adverse treatment."

The Appeal Court judgment appears to confirm earlier decisions, including judgments from the Supreme Court of Canada and various human rights tribunals, rather than carve out new ground.

Tysoe suggested the issue of whether sexual harassment amounted to gender-based discrimination has long been settled in courts in Canada, the United States and abroad.

Mr. Friedmann was Ms. MacGarvie's landlord from February, 2004, until the end of January, 2005. At the time, Ms. MacGarvie was in her mid-20s.

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During that time, the B.C. Human Rights Tribunal heard, Mr. Friedmann made numerous sexual advances, bought Ms. MacGarvie unwanted gifts, acted like a "jealous boyfriend" when she had male friends stay with her and, on one occasion, touched her buttocks.

Mr. Friedmann did not dispute any of those allegations, but argued the tribunal needed to demonstrate that he treated male and female tenants differently to make a case for discrimination - an argument the Appeal Court rejected.

One of Mr. Friedmann's lawyers, Caily DiPuma, declined to comment, nor would she say whether her client was considering appealing the case further.

Ms. MacGarvie's lawyer, Lindsay Waddell, said she was shocked when the B.C. Supreme Court issued its decision last year.

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