Tenant-landlord dispute questions whether sexual harassment is sex discrimination

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Tenant-landlord disputes don’t normally end up in B.C.’s highest court. However, the legal battle between Noemi MacGarvie and John Friedmann isn’t a run-of-the-mill disagreement over who might have been responsible for a problem in the apartment. It’s about sexual harassment and whether or not that constitutes discrimination on the basis of sex.

MacGarvie was a UBC student and single woman in her early 20s when she rented a suite in an East Vancouver building managed by Friedmann in 2004. She moved out after a year, later filing a complaint to the B.C. Human Rights Tribunal about inappropriate conduct on the part of her landlord. That included claims that Friedmann had touched her buttocks while she was sitting on a bicycle, gave her unwanted gifts, invited her to go out with him, looked at her body, and said things that made her feel uncomfortable. She also alleged that Friedmann came up with excuses to enter her suite, described himself as a “sexy, 40s, hard-working” man, and went shirtless as he pruned bushes outside her apartment window.

In presenting her case, MacGarvie brought forth seven witnesses before the tribunal, which awarded her nearly $20,000 for injury to dignity, feelings and self-respect, expenses, and for Friedmann’s improper conduct during the hearing. The 2009 ruling by tribunal member Diane MacLean found that Friedmann’s conduct, which included asking questions about MacGarvie’s boyfriend, was sexual harassment. This constituted discrimination on the basis of sex, which is illegal under the B.C. Human Rights Code.

But that wasn’t the end of the story. The landlord filed a judicial-review application in B.C. Supreme Court, successfully arguing that sexual harassment was not akin to sex discrimination. Justice Lance Bernard, who heard the case, freely acknowledged in his decision that Friedmann’s behaviour constituted sexual harassment. “The landlord/tenant relationship continued to deteriorate in the fall of 2004,” Bernard wrote. “Ms. MacGarvie testified that Mr. Friedmann became upset, and acted more like a jealous boyfriend than a landlord, when she had a male friend stay with her.”

However, Bernard ruled that MacGarvie had not established that the landlord had treated the male tenants differently. Therefore, the judge overturned the B.C. Human Rights Tribunal decision because he found no proof of sex discrimination.

On October 10, MacGarvie was before the B.C. Court of Appeal with a new ally, the West Coast Women’s Legal Education and Action Fund, which sees this as an important case for tenants. West Coast LEAF’s legal director, Laura Track, told the Georgia Straight by phone that there is “a long line of jurisprudence that tells us sexual harassment is sex discrimination”. In particular, she cited a 1989 Supreme Court of Canada ruling, Janzen v. Platy Enterprises, which found that sexual harassment in the workplace constituted discrimination on the basis of sex.

“It recognized how vulnerable women are to sexual harassment and the necessity of ensuring there is a forum they can access to have those human-rights violations addressed,” Track said. “That very clear precedent, although established in the employment context, I think directly applies to the tenancy context. The nature of the power imbalance between landlords and tenants is very much akin to the power imbalance that exists between employers and employees. And that power imbalance is all the more pronounced, as in this case, when there is an older male gentleman and the tenant is a young female.”

Track pointed out that the Residential Tenancy Branch does not deal with sex-discrimination complaints, so that the only venue available to low-income people is the B.C. Human Rights Tribunal. “You could take a sexual-harassment case to the court, but as we know, accessing the court—particularly without legal representation and without the legal aid necessary to support that for low-income people—is incredibly difficult,” she stated. “There are huge barriers to launching a case in court.”

The B.C. Court of Appeal was still hearing MacGarvie’s appeal when the Straight went to press.

Comments (4) Add New Comment
R U Kiddingme
How did this wind up in the Supreme? I need to read Bernard J's decision but from the summary he was out to lunch. If the tenant could not stay in the suite because of the landlord's sexual harassment, then she was constructively evicted, yeah? If you need to link that to a ground of sex then I don't see why that's a stretch. He was obviously interested in her slim body and showed off his aging muscles and stuff; if he wants to raise the 'defence' that he would have acted just as seductively to a male tenant, then surely the onus would be on him to bring the evidence. Moreover, is that even a defence? I guess the Supremes will tell us
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Birdy
My neighbour pruned a bush without a shirt on.
A few days later he looked at me.
I can has $20k?
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Vanisbeautiful
If your neighbour is your employer, or landlord, or anyone else that has power over you.. and they treat you in a way that affects your ability to live in peace and dignity then yes Birdy.. you have a case.
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Vanisbeautiful
Interesting court decision published today regarding the same landlord:

http://bcjustice.com/index.php?option=com_content&view=article&id=6554%3...
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