Union goes to court to overturn Sask. WCB decision about workplace sexual harassment

The union representing outside city workers in Regina is going to court in a bid to ensure workers are able to seek damages for sexual harassment in the workplace.

Canadian Union of Public Employees (CUPE) Local 21 has filed an application with the Court of King's Bench seeking to overturn a Workers' Compensation Board decision, according to a news release the union issued Monday.

The WCB had agreed with the City of Regina that workers are barred from seeking damages per Section 40 of the Saskatchewan Human Rights Code for harm to their dignity and self-respect due to workplace sexual harassment, according to the release.

The WCB Board Appeal Tribunal does not share details of claims decisions publicly, a WCB spokesperson told CBC News. The tribunal is awaiting the court decision and cannot comment further, the spokesperson said.

Section 40 of the provincial human rights code pertains to special compensation.

The court, it states, can order someone who has violated the code to pay up to $20,000 to compensate a person harmed if it finds the perpetrator "wilfully and recklessly" violated the code, or if the victim's dignity, feelings or self-respect has suffered as a result of the perpetrator's actions.

The union interprets that section of legislation to mean that women who have been sexually harassed — as well as people who have faced other discrimination such as homophobia or xenophobia — at work are entitled to compensation, according to the news release.

Ruling could affect workers province-wide: union

The union is worried the WCB decision could affect workers across Saskatchewan, setting the precedent that anyone who suffers a human rights violation at work will not have full access to the remedies available through the Saskatchewan Human Rights Code, the release says.

The City of Regina's top priority is health and safety, including protecting employees' dignity and self-respect in the workplace, a city spokesperson told CBC News in an email.

The city was pleased by the WCB decision, but it respects the union's right to challenge it in court, the spokesperson said.

Jill Arnott, executive director of the University of Regina's Women's Centre, finds the WCB decision alarming.

"I can't imagine what the rationale there would be," Arnott said. "We're going backward if we're seeking to limit remedy, rather than to address the problem."

Sexual harassment has been an issue in the professional world for decades, highlighted in recent years through the #MeToo movement, she said. Taking away remedies could force employees into silence — in Regina and, potentially, elsewhere.

Arnott believes the City of Regina can become a leader by allowing people to seek compensation if needed, and developing a workplace culture in which harassment is unaccepted and less likely to occur.

Proving one's injury seems to be at the heart of the issue, said Finn Makela, a law professor at the University of Sherbrooke in Quebec.

If there is medical proof of physical harm from sexual harassment, then the employer — in this case, the City of Regina — is not liable because it would be considered an occupational injury, Makela said.

The matter will be heard in court March 9, according to the union's news release.

Four other unions, including the Saskatchewan Federation of Labour, and the Saskatchewan Human Rights Commission are applicants to intervene, the release says.

The intervention mechanism allows non-parties that prove they have a stake in the case to participate in a court proceeding.

During the proceedings, the city will continue working with unions to ensure employees are safe at work, the city spokesperson said.

The case will likely be long uphill battle for the union — but one worth fighting, Makela said.

Makela noted that, several years ago, the Supreme Court of Canada ruled WCB legislation regarding compensation must conform with human rights. So there is a precedent.

Also, if the union were to lose, the case has made the issue public, setting a foundation to lobby government for legislative change, he said.