Oliva, Pascoe, and Strong v Gursoy, 2024: Its Significance for Alberta Employers and Employees

The Alberta Human Rights Commission addresses complaints related to human rights violations and discrimination within its jurisdiction. Individuals who believe they have been discriminated against, as defined by the Alberta Human Rights Act, may file a complaint. The Commission offers services to resolve and settle complaints, with the Tribunal adjudicating complaints that cannot be resolved. Historically, the AHRC has been known for conservatively awarding general damages, but monetary compensation has increased over the last few years. A notable change occurred on March 8, 2024, when the three complainants were awarded a combined $320,000 in damages, making it the most significant human rights damages case in the province’s history. This article will dive into what occurred, the results and damages paid, the decision’s significance, and how it impacts Alberta employers and employees.

What Occurred?

The case involved three former employees of TJ Construction Management, A. Olivia, L. Pascoe, and J. Strong, and the respondent, J. Gursoy, the company's director and sole shareholder.

The Human Rights Tribunal of Alberta ruled that all three individuals had suffered gender-based harassment and discrimination by Gursoy. Olivia, Pascoe, and Strong all experienced similar discriminatory behaviour, including:

• Inappropriate and unsolicited physical contact
• Derogatory comments
• Sexual advances and suggestive nicknames
• Gender-based and physical disability discrimination
• Unreasonable insistence on obtaining private medical information
• Inappropriate remarks about physical appearance and attire
• After learning of Strong’s pregnancy:
  • Aggressive and demeaning outbursts
  • Accusing her of being a liability to the company
  • Demoting her as a direct result of her pregnancy
  • Inappropriate comments regarding her pregnancy and personal life

These and similar actions were repeated over several months, creating a hostile and demeaning work environment and impacting all three women significantly. Eventually, the mistreatment led to the termination of their employment.

In response, Gursoy filed two lawsuits accusing the complainants of attempting to damage his business and reputation by making false human rights claims, contacting clients, trades, employees, and business partners and seeking “astronomical damages.”

However, his legal actions were considered retaliatory (breach of section 10 of the Alberta Human Rights Act) since they aimed to intimidate and financially burden the complainants to discourage them from pursuing their legal claims.

Outcome and Damages

The tribunal ruled in favour of the complainants and stressed the importance of maintaining a respectful and safe work environment free from harassment and discrimination. To underscore the decision, the total amounts awarded include general damages for discrimination for all three complainants, as well as damages for wage loss, general damages for retaliation, and special damages for legal fees for A. Olivia and L. Pascoe.

Total Amounts:

• Olivia: $205,721.03
• Pascoe: $67,553.88
• Strong: $50,000 

Why is This Decision Important?

The Alberta Human Rights Commission (AHRC) has been known for its conservative approach to general damages awards compared to other human rights commissions in Canada, typically capping awards at $20,000 to $25,000. However, its damages for workplace human rights complaints have been increasing in recent years. For example, in 2022, the AHRC's decision in Yaschuk v Emerson Electric Canada Limited set a new precedent by awarding $50,000 in general damages for a sexual harassment case. With this most recent decision, the amount has yet again been raised to $75,000.

The decision is also significant for the following reasons:

• There are three complainants involved and more than three complaints in one case
• It provides guidance on the “continuing contravention” exception to the ordinary 1-year human rights limitation
• It offers insight on establishing a “retaliation” claim in Alberta

What Does this Decision Mean for Alberta Employers and Employees?

In light of the recent developments at the AHRC, employers and employees are being signalled that the commission takes individuals’ rights and dignity in the workplace seriously and that high damages will likely be increasingly common in the future. While this is a step in the right direction for potential and current complainants, Alberta employers are encouraged to take several preventative steps, including:

• Introduction and enforcement of workplace policies addressing workplace discrimination, violence, and harassment.
• Diligent, appropriate, and timely responses to workplace violence and harassment complaints.
• Sufficient training of all employees to avoid discrimination and mistreatment in the workplace.
• Consider workplace accommodation requests with reasonable care (keep records of each step taken).
• Ensure compliance with the Alberta Human Rights Act in every aspect of business.
• Seek legal advice well before the hearing if faced with a human rights complaint.

Ashton College’s Alberta Employment Law Course

If you would like to learn more about human rights in the workplace, including discrimination and human rights complaints, and human rights issues during recruitment, selection, hiring and employment, Ashton College’s Alberta Employment Law course is the answer. In addition to human rights issues, students will learn about many other aspects, such as the sources of employment law, common law principles, unionized workplaces, the Canada Labour Code, the Employment Standards Code of Alberta and more. This part-time, online course is valuable to Alberta law professionals, HR professionals, employees, business owners and anyone maintaining a business relationship with Alberta companies. Interested? Learn more on our course webpage: https://www.ashtoncollege.ca/programs/alberta-employment-law/