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28 Queen's L.J. 637 (2002-2003)
Common Law Actions for Sexual Harassment: The Jurisdiction Question Revisited

handle is hein.journals/queen28 and id is 647 raw text is: Common Law Actions for Sexual
Harassment: The Jurisdiction Question
Revisited
Gillian Demeyere*
Although human rights legislation in most Canadian jurisdictions includes the right
of an employee to be free from harassment on the basis of sex, victims of sexual
harassment are increasingly pursuing remedies in tort or contract. Canadian courts
most often use the pleadings approach to determine the issue of jurisdiction: where a
plaintiff pleads an independent cause of action (such as assault or wrongful dismissal),
the claim falls within the courts' jurisdiction, and where a plaintiff pleads sexual
harassment, the claim falls under human rights legislation. This article describes bow
the pleadings approach attempts to strike a balance between the absence of an exclusive
jurisdiction provision in human rights legislation and the Supreme Court of Canada's
decision in Bhadauria v. Seneca College, which seems to oust the jurisdiction of
courts over claims that fall under the legislation. The author argues that the pleadings
approach takes an overly narrow view of the jurisdiction of courts, by assuming that a
sexual harassment claim must be based solely on human rights legislation and not also
on rights known to the common law. She suggests that the proper test to be applied on
a motion to dismiss should not be whether the plaintiffhas pleaded an existing cause of
action, but whether the claim discloses a reasonable cause of action. The author argues
that the provisions and public policy of human rights legislation do not exhaust the
entitlements to which a victim of sexual harassment may lay claim, including the
protection of rights and interests falling within the jurisdiction of the common law.
Fortunately, the willingness of Canadian courts to bear sexual harassment cases
framed as independent causes of action may pave the way for the common law to
eventually recognize sexual harassment itself as an independent actionable wrong.
Introduction
I.   The Jurisdiction Question
A.   Interpreting the Legislation
B.   Considering Bhadauria
C.   The Pleadings Approach
* S.J.D. Candidate, University of Toronto. Thanks to Denise R~aume, Melanie
Randall, Dennis Klimchuk and an anonymous reviewer for their helpful
suggestions.

G. Demeyere

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