AHRC Says Shop Talk Banter Not Always Discrimination

By: Amanda Jacinto

Published: 30 October 2023

Wentland v 2192724 Alberta Inc. o/a Pac Masonry, 2023 AHRC 95 (CanLII), is a recent Alberta Human Rights Tribunal decision where the complainant alleged that its employer discriminated against him in the workplace on the grounds of age and sexual orientation in contravention of Section 7 of the Alberta Human Rights Act (the “Act”).


The following were the facts summarized by the Tribunal:

  • The complainant, Matthew Wentland (the “Complainant”) worked for the respondent, 2192724 Alberta Inc. o/a Pac Masonry (the “Respondent”) as a general laborer
  • When the Complainant started to work for the Respondent he was 20 years old
  • During his employment, the Complainant told his supervisor and colleagues that he was pansexual
  • The Complainant was of the position that he was harassed by his supervisor in the workplace and testified that the following incidents occurred:

    • The Complainant’s supervisor made comments about his age and work ethic. In particular that he worked too slow and that kids his age did not have a good work ethic
    • The Complainant was often called “gay” by not only his supervisor but also his colleagues
    • The supervisor commented on the Complaint’s work saying he was too feminine and not man enough for the job
    • The supervisor put burning cigarettes in the Complainants pants and put a spider down his shirt
    • The supervisor did not allow the Complainant to eat
    • The supervisor made comments about the Complainant’s sister’s sexual orientation
    • The supervisor and Complainant’s colleagues threw rocks and cement at him
    • The Supervisor hit him with a trowel at work.
  • There were a handful of witnesses, which included the Complainant, the supervisor and the Complainant’s colleagues. The following was determined:
    • The Respondent’s employees were friends and would jokingly call each other “gay”
    • The employees often threw rocks and cement at each other
    • The comment about the Complainant’s work ethic was a general comment and not directed towards the Complainant in particular
    • It was common practice for the Supervisor to tap employees with a trowel to get their attention
    • The spider incident was a practical joke.

Analysis / Conclusion

The Tribunal was of the position that the rock and cement throwing incidents, and trowel pocking incident did not amount to discrimination or harassment as it was not directed solely to the Complainant. Rather, it was common for the Respondent’s employees to throw rocks and cement at each other, as a joke. It was also common practice for the supervisor to poke employees with a trowel to grab their attention.

However, the Tribunal determined that the supervisor’s “gay” comments towards the Complainant was harassment and discriminatory (despite the Respondent’s employees calling each other “gay”) because the supervisor repeatedly made the comments and continued to do so after the Complainant asked the supervisor to stop. The Tribunal also determined that the comments were made when someone did something wrong in the workplace or when the Complainant engaged in certain conduct. The Tribunal held that the comments were based on the supervisor’s derogatory stereotype of gay people.

The Complainant was awarded $15,000 in general damages for pain and suffering as a result of his discriminatory treatment.

My Take

The Tribunal’s decision that the rock and cement throwing, and trowel pocking behavior did not amount to harassment and discrimination in the workplace would likely surprise many. However, this finding was due to the fact that everyone at work received this treatment.

Had the Complainant been the only employee of the Respondent who had rocks and cement thrown at them or was the only one who was pocked with the trowel, I anticipate the Tribunal may have come to a different conclusion.

This case is also a reminder that ultimately the Employer can be responsible for the conduct of its employees. As such, they should be mindful and aware of the conduct of its hires.

Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Amanda Jacinto is an employment and labour lawyer at Bow River Law in Calgary.