11/08/2012 01:35 EST | Updated 01/08/2013 05:12 EST

Sexual Harassment Is Discrimination: B.C. Appeal Court


VANCOUVER - 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 sexually 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.

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

But the B.C. Court of Appeal sided with 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.

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

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

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

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

"The B.C. Supreme Court's decision (throwing out the discrimination complaint) is a single anomaly — it really is the only decision taking that position in the past 30 years," Waddell said in an interview.

"In terms of my client, she's pleased to be putting this matter behind her."

Laura Track, a lawyer with the West Coast Legal Education and Action Fund, which intervened in the case, said the Appeal Court's decision confirms tenants are protected from sexual harassment from their landlords.

"What we sought to show the court was how the power imbalance that exists in an employer-employee situation is very much analogous to the power imbalance that exists between landlords and tenants, particularly when the landlord is an older male and the tenant is a younger female," Track said in an interview.

"The landlord-tenant relationship makes young female tenants very vulnerable to this kind of abuse."