| The thesis takes as its starting point the question of whether workplace sexual harassment, apart from being recognized as a form of gender-based discrimination under Canadian human rights legislation, might also amount to a tort. The idea that sexual harassment might amount to a tort is neither new nor implausible, and yet to date, with one exception, no such tort has gained judicial recognition. The thesis does not seek to offer a comprehensive argument in favour of a new tort of sexual harassment, but rather to examine the obstacles that have been seen by courts and commentators as preventing such a development. Part II takes on the prevailing view of the judiciary that the existence of an independent enforcement mechanism under human rights legislation leaves courts without jurisdiction over matters of sexual harassment. Part III outlines the difficulties that current tort doctrine poses for plaintiffs who seek to pigeonhole their claims of sexual harassment into existing causes of action. These difficulties have led some commentators to conclude either that only with a new tort of sexual harassment will victims find adequate relief or that tort law is wholly inadequate to the task of redressing sexual harassment. Rather than abandon existing tort law as a potential approach to cases of sexual harassment, however, I go on, in Part IV, to "diagnose" the seeming inadequacy of existing doctrine. I argue that existing doctrine, along with prevailing social perceptions of sexual conduct invite ---but do not compel---judicial failure to recognize sexual harassment as tortious behaviour. I conclude that the abandonment of existing tort doctrine urged by feminist commentators, either in favour of a new tort or some other legal regime, has been too hastily urged. |
