Graesser v. Porto
1983-07-15
Ontario Board of Inquiry
CHRR Doc. 83-066
Cynthia Joyce Graesser Complainant
v.
John Porto Respondent
Date: July 15, 1983
Place: Toronto, Ontario
Before: Ontario Board of Inquiry, Frederick H. Zemans
Appearances by: Michael W Bader, Counsel for the Ontario Human Rights Commission and Cynthia Graesser
SEXUAL HARASSMENT — sexual advances by employer — EVIDENCE — similar fact evidence — DAMAGES — damages assessed for sexual harassment — duty to mitigate
Summary: The Board of Inquiry finds John Porto responsible for the sexual harassment of Cynthia Graesser.
The Board bases its finding on the testimony of the Complainant, similar fact evidence of sexual harassment tendered by a former employee of Mr. Porto, as well as corroborative evidence supplied by one of the respondent's own witnesses.
The Board finds as a fact that John Porto "physically abused the complainant through his sexual harassment" and that "there was a definite connection between the sexual harassment of the complainant and the termination of her employment."
The Board orders Mr. Porto to cease and desist the sexual harassment of employees in the future, to write Ms. Graesser a letter of apology and to pay her $1,125 in damages.
1The complainant in this matter, Cynthia Joyce Graesser, alleges that she was sexually harassed while she was employed by the respondent, John Porto. She alleges that the respondent contravened s. 4(1)(a), (b), (e), and (g) of the Ontario Human Rights Code, R.S.O. 1980, c. 340, as amended. I was appointed to chair a Board of Inquiry into this matter by the Minister of Labour, the Honourable R.H. Ramsay, on June 1st, 1982. Pursuant to this appointment, a public hearing was held on November 22nd and November 26th, 1982. No evidence was called with respect to the alleged contravention of s. 4(1)(a) and (e). I am therefore called upon to determine whether there has been a contravention of s. 4(11)(b) or (g) of the Code.
2The complaint arose from an incident in the summer of 1980. Ms. Graesser was 17 and was attending Central Peel Secondary School. She was not residing at home but had her own accommodation and was supporting herself as a babysitter. Ms. Graesser was seeking summer employment that would pay her higher remuneration. On July 24, 1980, she visited the local Student Manpower office where she saw a notice for a clerical position with a Mr. John Porto, the Brampton area co-ordinator for Bestline Products. Ms. Graesser was interviewed by Mr. Porto on July 25th, 1980, and was offered a clerical position working from 9:00 a.m. to 2:00 p. m. daily, with remuneration to be $3 per hour. During the initial interview, Ms. Graesser was given a tour of the office, during which, she testified, she felt that Mr. Porto was standing uncomfortably close to her; but she thought at the time that she was being over-sensitive and therefore made no mention of it to Mr. Porto. (Evidence Vol. I, p. 12)
3The evidence indicated that Mr. Porto was responsible for management of the company's offices, organizing company meetings, training new recruits, and developing his own business as a Bestline distributor. He shared this position with his wife, Ms. Silvana Porto. Mr. Porto described Bestline as a "multi-level direct sales company." (Evidence Vol. I, p. 58)
4The Bestline offices were located in 1980 at 334 Rutherford Road, Brampton, where one entered from a plaza into a central foyer. At the left side of the foyer was a meeting or boardroom, and to the right of the foyer was a hallway leading to the two offices. The first of these was Mr. Porto's office, while the other was used by Mr. Michael Edwards, the Regional Director of Bestline.
5Mr. Edwards testified that he and Ms. Carolyn AIbers (now Edwards) came to assist Mr. and Mrs. Porto in 1980 in establishing a distribution system for Bestline Products in the Brampton area. Mr. Edwards testified that Ms. Graesser was employed by John Porto personally and not by the Bestline company.
6Cynthia Graesser commenced work on July 28th, 1980. During most of her first two days, she used the telephone in Mr. Edwards' office, which was located next to Mr. Porto's office. Each day she was invited to have lunch in Mr. Porto's office. During her first lunch hour, Mr. Porto showed her pictures of Bestline gatherings in Bermuda. Ms. Graesser testified that she again felt that Mr. Porto was standing extremely close to her, but said nothing to him about it:
I noticed at the time that he was standing extremely close behind me and it made me quite uncomfortable, but I didn't want to say anything for fear ... as I said, I was supporting myself and I needed the job. I quit the baby sitting job. I had to have it. (Evidence Vol. I, p. 15)
7On the second day of her employment, Ms. Graesser was again invited to eat lunch with Mr. Porto in his office. They sat on opposite sides of the desk. Ms. Graesser testified that, despite her apparently conservative attire, Mr. Porto continued to stare at her chest area, making her uncomfortable.
8During the morning of the complainant's third day of employment, a recruitment meeting was held in the boardroom. Mr. Edwards' office was used for activities surrounding this meeting. Therefore on that morning, Ms. Graesser made telephone calls from Mr. Porto's office. The meeting ended at 11:30 a.m., at which time, Ms. Graesser testified, Mr. Edwards and his girlfriend, Ms. Albers, went out for lunch. Mr. Porto returned to his office where Ms. Graesser was working. Ms. Graesser testified that Mr. Porto told her not to bother moving and that he would sit on her lap. Ms. Graesser refused this advance and moved to the other side of the desk. (Evidence Vol. I, p. 19)
9When Ms. Graesser took off her glasses to rub her eyes, Mr. Porto told her to leave them off because she looked sexier without them. Ms. Graesser replaced her glasses on her face.
10Ms. Graesser testified that after telling her to take a break, Mr. Porto came around behind her and began massaging her backside area and around her arms. She attempted to push his hands away but was unsuccessful. The massaging incident, according to Ms. Graesser, went on until approximately 1:30 p. m. Ms. Graesser testified that during this sixty- to ninety-minute period she made frequent requests that Mr. Porto discontinue his physical touching of her, but to no avail:
He went on and on. It just seemed a successive round of pulling my hands forward, pushing them against my side, pushing them back, and sitting back so that he could move his hands down to my bottom, and pulling forward again because he was coming up over my shoulders. It just seemed to go on and on. (Evidence Vol. I, p. 22)
11At 1:30 p. m. a telephone repairman entered the office. At that point the massaging ceased. When asked why she had not attempted to leave the office earlier, Ms. Graesser responded by saying that she felt safer in the chair because she was sufficiently nervous that she was concerned whether or not she could walk to the concourse outside the office suite. The complainant believed that Mr. Porto was trying to arouse her to the point that she would agree to some other unspecified acts. (Evidence Vol. I, pp. 32–33)
12Mr. Porto testified that in response to Ms. Graesser's complaints about a backache, he recommended a massage therapy similar to the therapy that he was receiving. He denied ever actually massaging Ms. Graesser and specifically denied ever trying to get his arms around the front of her person. Mr. Porto admitted that he may have laid his hand on Ms. Graesser's shoulder while helping her read a name in the telephone book, but stated that that was his only physical contact with the complainant. Mr. Porto testified that he does not consider such physical contact as putting his hand on Ms. Graesser's shoulder sexual harassment, but rather an action consistent with a friendly atmosphere he was attempting to foster between his staff and distributors. (Evidence Vol. I, pp. 63–64)
13The respondent testified that there was generally a constant flow of people through his office and that often distributors would drop in during their lunch hours. (Evidence Vol. I, p. 65) Mr. Edwards' testimony is consistent with that of the respondent in this regard. (Evidence Vol. II, p. 28) Mr. Porto testified that Mr. Edwards and Ms. Albers usually took a brief luncheon break and that therefore he could have been alone with the complainant for no more than fifteen to twenty minutes. (Evidence Vol. I, p. 66) Mr. Edwards, however, testified that he was usually at lunch from noon to 2:00 p. m. and that Ms. Albers frequently accompanied him. (Evidence Vol. II, p. 33) Mrs. Porto testified that she was generally at the office when meetings were being held and would frequently visit the office on other occasions. (Evidence Vol. II, p. 73) Mr. Edwards and Mr. Porto both testified that doors within the office suite were generally left open.
14At the end of her work day, Ms. Graesser accepted a ride from Mr. Porto. She testified that she felt too frightened to walk home. She asked Mr. Porto to drive her to a restaurant near her home, where she said she had to meet a cousin. Ms. Graesser testified that in retrospect she believes that it was unwise for her to have accepted this ride. She testified that she was not thinking rationally at this point, that she was afraid, and that all she was concerned about was getting home as soon as possible. No unusual events are alleged to have taken place during the ride to the restaurant. Ms. Graesser testified that she proceeded home directly from the restaurant and telephoned Student Manpower. She related her experience to them, and they gave her the telephone number of the Ontario Human Rights Commission. Ms. Graesser contacted the Commission and eventually laid the complaint giving rise to this hearing.
15The following morning, Ms. Graesser telephoned Mr. Porto and resigned. She was told that her cheque would be ready the following day and arranged for her father to collect it for her. Other events did occur as a result of the incident, but they are of little importance in dealing with the issue of sexual harassment.
16Ms. Sheila Laing was called to testify for the complainant. I must first determine whether Ms. Laing's similar fact evidence is admissible. Boards of Inquiry, pursuant to the Ontario Human Rights Code, are governed by the Statutory Powers Procedure Act, R.S.O. 1980. Section 15 of that Act states:
Any evidence is admissible provided that It is relevant to the subject matter.
Similar fact evidence has been discussed in a number of recent Human Rights decisions. The proper approach in determining whether or not to hear a specific piece of evidence is for the Board of Inquiry to ask: Is the similar fact evidence being offered relevant to the subject matter? If that question is answered in the affirmative, then the next question to be addressed is: To what extent can that evidence be used?
17I have no difficulty in determining that the evidence put forward in this case is in fact relevant, and due to the difficulty in assessing the contradictory evidence in sexual harassment allegations, I am prepared to consider the evidence tendered in reaching my decision. It is appropriate to turn to recent Canadian case law for clarification of the guiding principles relating to similar fact evidence despite the fact that this Board is not restricted by the rules of evidence.
18The Supreme Court of Canada recently considered the issue of similar fact evidence. In Sweitzer v. The Queen (1982), 1982 CanLII 23 (SCC), 68 C.C.C. (2d) 193, Mr. Justice McIntyre reviewed the English cases in which the general principles have been enunciated. He cited Makin and Makin v. A.G. for New South Wales, [1894] A.C. 57, referred to in Boardman v. Director of Public Prosecutions, [1974] 3 All. E.R. 887. In Makin, Lord Hershell, L.C. wrote at page 65, cited in Sweitzer at 196:
In their Lordships' opinion the principles which must govern the decision of the case are clear, though the application of them is by no means free from difficulty. It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.
19Mr. Justice McIntyre, at page 196, stated that this general principle "... should be applied in all cases where similar fact evidence is tendered and its admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission whatever the purpose of its admission," once the relevance of the evidence is established.
20Sweitzer was a case in which the issue was the identity of a rapist. The prosecution sought to have admitted evidence of eleven assaults on other women, most of whom, like the victim of the incident in question, were unable to identify the assailant. They afforded no evidence of identification of the accused because despite the existence of varying degrees of similarity between the acts, there was no evidence which connected the accused with the episodes. Mr. Justice McIntyre wrote at page 197:
Before evidence may be admitted as evidence of similar facts, there must be a link between the allegedly similar facts and the accused. In other words there must be some evidence upon which the trier of fact can make a proper finding that the similar facts to be relied upon were in fact the acts of the accused for it is clear that if they were not his own but those of another they have no relevance to the matters at issue under the indictment.
21In the case before me there is no issue of connection of the evidence with the respondent since it has been established that Mr. Porto was the employer of both Ms. Graesser and Ms. Sheila Laing. The issue is the similarity of behaviour of the respondent towards his two young female employees. Mr. Justice McIntyre noted the variety of purposes for which evidence of similar facts may be admitted:
Evidence of similar facts has been adduced to prove intent, to prove a system, to prove a plan, to show malice, to rebut the defence of accident or mistake, to prove identity, to rebut the defence of innocent association and for other similar and related purposes.
22Our case clearly falls within the parameters noted. Boards of Inquiry have been cognizant of the care with which one must proceed, given such discretion. In Bell and Korczak v. The Flaming Star Steak House Tavern Inc., [1980, Ontario Board of Inquiry], O.B. Shime, Q.C. stated at page 8:
The danger in admitting similar fact evidence is that the accused person may be convicted not on the basis of evidence relating to the offence, which he or she is charged, but on the basis of evidence of other acts which show the accused has a disposition which makes it likely that the accused committed the offence for which he or she is being charged.
Given this caveat, the benefit derived from admitting such evidence must be weighed against the prejudice to the person against whom it is admitted.
23When dealing with matters involving sexual harassment, or I might add, other alleged violations of the Ontario Human Rights Code, one rarely encounters the situation where the offence or alleged offence takes place in the open, and therefore can be proven through eye witness testimony. That is, rarely will one sexually harass another in full public view. Rather, these events usually take place behind closed doors or with no witnesses present. Such being the case, if similar fact evidence were excluded, the trier of fact would be faced with having to decide an issue based solely on the evidence of the parties before him. In situations where there is some doubt as to what actually happened, the trier of fact may have difficulty in deciding the matter. Nonetheless, he or she must decide the issue. Extraneous sources of evidence come into play within this context, and where such is the case, the trier of fact should be receptive to similar fact evidence. The evidence is not admitted to establish the guilt or innocence of the accused, but rather, to enable the decision maker to make a more informed decision. The similar fact evidence can be used to corroborate testimony previously given. It should not be used if the evidence will unduly influence the trier of fact.
24In the case before me, I have the testimony of Cynthia Graesser who says she was sexually harassed, and that of John Porto who says he in no way sexually harassed the complainant. The similar fact evidence I am asked to accept is that of Sheila Laing, a former employee of John Porto, whose testimony would indicate similar treatment to that alleged by Ms. Graesser. In light of the difficulty associated with establishing sexual harassment, and the relevance of her testimony, I consider the evidence of Sheila Laing to be admissible to rebut the defence of the respondent. In my opinion the evidence is not prejudicial to Mr. Porto.
25Ms. Laing was employed by John Porto in the early part of July, 1980 when she was 16 years of age. Like Ms. Graesser, she was referred to the position through Student Manpower. Sheila Laing began work with the respondent on July 3rd, 1980 and continued in his employ doing telephone solicitation for approximately two weeks. Ms. Laing testified that on July 16th, 1980 Mr. Porto came into the office where she was working and began talking to her. After receiving a telephone call which he took in Ms. Laing's office, he invited her for a coffee in the boardroom to show her a set of new speakers for the company's sound system. Ms. Laing's description of the pictures in this room coincide with that of Ms. Graesser. Ms. Laing testified that, in referring to the people in the pictures, Mr. Porto asked her if she liked rich men. He then asked Ms. Laing to dance, and then tried to kiss her:
He had the music going at this time and then he grabbed me and asked me if I wanted to dance. I said "no" and then he tried to kiss me, and then I ran out of that room and back into my office and just sat there. Then he came back and said that he was sorry and he didn't know what got into him. (Evidence Vol. I, pp. 44–45)
26Mr. Porto's recollection of the event was somewhat different. He stated that he never attempted to kiss Ms. Laing. Mr. Porto testified that while Ms. Laing was good at her job, near the end of her period of employment she appeared to be becoming frustrated: "... she would work for fifteen minutes and get up and go help herself with a coffee or whatever." (Evidence Vol. I, p. 67) He testified that since the recruiters used a telephone line which also connected on his telephone, he could tell when the recruiters were making calls. He recalls that on the day in question he noticed that Ms. Laing's line was not engaged for a period of time. He testified that he went to look for Ms. Laing and found her in the boardroom looking at the pictures:
I went behind her and she was looking at these pictures and I went behind her and said, "what are you doing?" She jumped, she said, "oh, I am just looking at the pictures." So I showed her, I says, "it is great that some of these people work here and so forth." That is how we do our recruiting. (Evidence Vol. I, pp. 67–68)
On cross-examination by Mr. Bader, Mr. Porto stated that their bodies, in fact, met when he came up behind her. Even if I accept Mr. Porto's explanation of the event, which I do not, one might ask what Mr. Porto was doing so close to Ms. Laing that when she turned around their bodies brushed against each other. In dealing with any conflicts in testimony between that of Ms. Laing and that of Mr. Porto, I accept the testimony of Ms. Laing.
27Mr. Porto called as witnesses Michael Edwards, Carolyn Edwards, his wife Sylvana Porto, Olive Robertson and Joanne Laing. Both Mr. and Mrs. Edwards testified that they worked closely with John Porto and his wife and that they all had a good working relationship. However, they also testified that they had little to do with any of the telephone solicitors that John Porto employed. Both testified that they were often out of the office between 12:00 noon and 2:00 p. m.
28Mr. Edwards did testify that he was surprised to hear of the harassment on the day after it allegedly took place. He questioned Mr. Porto about the allegations but did not pursue the situation further because of his confidence in Mr. Porto. It should be noted that at the time of Ms. Graesser's employment, Mr. Edwards had known Mr. Porto for only two months.
29Ms. Joanne Laing (no relation to Sheila Laing) was called as a witness by the respondent. She testified that she had been employed by the respondent in 1980 for five to six months. She left her employment with Bestline Products because, in part, she felt "uncomfortable" working for Mr. Porto due to the fact that another female employee complained to her about sexual harassment.
30Ms. Joanne Laing testified that she had not known the complainant but that she had known another young woman who had worked for Mr. Porto during the summer of 1980, a Ms. Sheila Laing. They worked alternative shifts – Joanne Laing worked mornings, and Sheila Laing, afternoons. Joanne Laing trained Sheila Laing, and saw her around the office frequently when their shifts overlapped. Ms. Joanne Laing testified that she received a telephone call one afternoon from Sheila Laing in which she indicated that she was very upset because Mr. Porto had tried to make advances to her:
Well, she called me one afternoon, very upset and distressed, and said that Mr. Porto had tried to make advances to her in the party room, where we worked. And, she was very upset and didn't know what to do and she asked for my advice and asked me if anything, you know, like that happened to me, which it did not. But, I didn't know what to say to her because she was afraid to tell her parents what had gone on and being at the location it was, she couldn't get home on her own. There was no bus service on Rutherford Road at that time. So I suggested that she just leave the premises, I told her, lock the door and go on out. But she didn't know what to do because, as I said, she had no way home ... I think she decided that she would call her boyfriend, or she would do something ... My advice to her was just lock the door and leave. But, she was obviously distressed, that you know, something had gone on ... Well, she felt that he had tried to come up from behind her and kiss her. (Evidence Vol. II, pp. 9–10)
Joanne Laing's evidence which was called by the respondent, corroborates Sheila Laing's testimony as to an incident in July, 1980 which in many respects parallels the complainant's testimony of what transpired on July 30th, 1980.
31Sheila Laing's testimony indicates an occurrence similar to that complained of by Ms. Graesser. In assessing the value of her evidence, I place great weight on the fact that Ms. Graesser and Sheila Laing had neither met nor discussed the issues in this matter prior to the hearing. I should add that even if the similar fact evidence was not accepted by the Board, I would still make the finding of fact that Mr. Porto did physically touch Ms. Graesser against her wishes for an extended period of time on July 30th, 1980. I find Ms. Graesser to be a truthful witness and when her evidence is in conflict with the respondent, I accept Ms. Graesser's testimony.
32However, that does not end the matter. Physical contact between employees which leads to one of the parties leaving the employment does not automatically result in a violation of the Ontario Human Rights Code. Once one establishes physical contact, or emotional for that matter, one must determine if such contact was indeed sexual harassment and therefore a violation of the Code.
33The relevant provisions of the Ontario Human Rights Code are found in s. 4(1)(b) and (g):
4(1) No person shall ...
(b) dismiss or refuse to employ or to continue to employ any person ... because of the ... sex ... of such person or employee.
(g) discriminate against any employee with regard to any term or condition of employment, because of the ... sex ... of such person or employee.
Prior to the 1982 amendments to the Code, the issue of sexual harassment had been treated by broadly interpreting s. 4(1)(g). However, that is not to say that s. 4(1)(g) has been so broadly interpreted as to encompass all situations where there has been some contact or interaction between employer and employee.
34In Grace Aragona v. Elegant Lamp Co. Ltd. and Fillipitto (1982, Ontario Board of Inquiry), Professor E.J. Ratushny discusses when acts amount to sexual harassment within the provision of the Ontario Human Rights Code. At page 4 he states:
The line of sexual harassment is crossed only where the conduct may be reasonably construed to create as a condition of employment, a work environment which demands an unwarranted intrusion upon the employee's sexual dignity as a man or woman.
35In Korczak v. The Flaming Star, Mr. Shime expresses similar concern over interpreting sexual harassment too broadly At page 5 he states:
One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited, activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint.
At page 4 of his decision, Mr. Shime goes on to discuss what acts he views to be sexual harassment:
But what about sexual harassment? Clearly, a person who is disadvantaged because of her sex is being discriminated against in her employment when employer conduct denies her financial reward because of her sex, or exacts some form of sexual compliance to improve or maintain her existing benefits. The evil to be remedied is the utilization of economic power or authority so as to restrict a woman's guaranteed and equal access to the work place, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman ... The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting which may reasonably be perceived to create a negative psychological and emotional work environment.
36In Korczak, the Board of Inquiry determined sexual harassment fell under s. 4(1)(g) of the Code. However, the Board made the finding of fact that sexual harassment had not occurred in that case and that the Code had not been violated.
37In Cox and Cowell v. Jagbritte Inc. et al. (1981, Ontario Board of Inquiry, Professor Cumming), the Board held that the Ontario Human Rights Code had been violated when the respondent's persistent grabbing, kissing, touching and propositioning of the complainant led to her resignation.
38However, that is not to say that in order to violate the Code the harassment must be persistent. Rather, an isolated event may constitute sexual harassment. As Mr. Shime stated in Korczak:
... persistent and frequent conduct is not a condition for an adverse finding under the Code because a single incident of an employee being denied equality of employment because of sex is also prohibited activity.
As the case points out, while the Boards of Inquiry have expressed concern that social situations may lead to unwarranted allegations under the Code, they have also gone to great lengths to ensure that employees are protected from unwarranted intrusion upon them personally, or the conditions under which they work.
39Professor Cumming's statement in Rosanna Torres v. Royalty Kitchenware Ltd. and Francesco Guercio (1982, Ontario Board of Inquiry), at page 20, concisely summarizes that point:
The Ontario cases just discussed demonstrate that the prohibition in the Code against sexual discrimination in the form of sexual harassment is a far reaching one. The Code proscribes conduct as blatant and offensive as might constitute a trespass to the person [Allison Hughes and Lorry White v. Dieter Jeckel (Robert W. Kerr, August 20, 1981, Cox (supra), Co[u]troubis and Kekatos v. S[k]avos (Professor E.J. Ratushny, June 16, 1981) 2 C.H.R.R. DC457] and as subtle as Implicitly suggestive remarks [Bell (supra), Mitchell v. Traveller's Inn (1981, Ontario Board of Inquiry, Goss)].
Professor Cumming continued:
There is no doubt that the Boards of Inquiry, by their creative interpretation of the Human Rights Code, have made a substantial penetration into the workplace in order to eradicate an insidious form of discrimination.
40The Ontario cases just discussed demonstrate that the prohibition in the Code that applies to the parties before me against sex discrimination in the form of sexual harassment is a far-reaching one. These decisions indicate that complaints have been upheld under s. 4(1)(b) if an employer dismissed or refused to hire a complainant for her failure to comply with sexual advances (Hughes; Mitchell) and for constructive dismissal (McPherson v. Ambo) under s. 4(1)(g) if an employer by sexually harassing employees, imposed discriminatory terms or conditions of employment.
41The respondent, John Porto, physically abused the complainant through his sexual harassment during her short period of employment. In my opinion, there was a definite connection between the sexual harassment of the complainant and the termination of her employment. The complainant has met the onus of showing that compliance with Mr. Porto's sexual advances was, in effect, a term or condition of her employment. She was able to resist his advances on the one occasion when they became significant. However, even though he knew she objected to his sexual advances, he persisted in his attempts and, in my opinion, made her subjection to such behaviour on his part a term or condition of her employment.
42There is casual [sic] connection in this case between the sexual harassment and adverse employment consequences. The complainant could only continue to be employed if she subjected herself to sexual harassment, a condition of employment forced upon her because she was a female employee. The sexual advances were the cause of termination of the complainant's employment. I find that the respondent's behaviour amounts to constructive dismissal of the complainant within the provisions of s. 4(1)(b). Ms. Graesser could not tolerate Mr. Porto's conduct and decided to quit and to face the economic insecurity of unemployment rather than to continue to submit herself to his harassment.
43The respondent, John Porto, was in breach of paragraphs 4(1)(b) and (g) of the Ontario Human Rights Code, in his sexual harassment of the complainant. He discriminated against her because of her sex within the meaning of those provisions.
44I must now address the question of damages. Section 19 of the Ontario Human Rights Code is the relevant section:
- The Board, after hearing a complaint,
(a) shall decide whether or not any party has contravened the Act; and
(b) may order any party who has contravened this Act to do any act or thing that, in the opinion of the Board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefore.
1971 c. 50, s. 63, part.
45The case of Torres v. Royalty Kitchenware engages in a lengthy discussion of the scope and purpose of damages (pp. 24–42). What becomes apparent upon reading this passage is that in awarding damages, the trend has shifted from awarding such damages as a punitive measure, to awarding the damages as a form of compensation to the complainant. So too, has a principal emerged that the complainant, in addition to being entitled to damages based on specific damages such as lost earnings, is also entitled to general damages based on psychological damages, mental distress and the like.
46In Torres, Professor Cumming refers to the case of Oberto lmberto v. Vic and Tony Coiffure (Professor John McCamus, April 6, 1981) 1981 CanLII 4320 (ON HRT), 2 C.H.R.R. D/392, where Professor McCamus awarded damages to the complainant based on lost wages. He stated:
The complainant has sought relief in the form of compensation for frustration and mental distress resulting from the discriminatory action of the respondents. Although the law of contract damages has been somewhat reluctant in the past to award compensation for injuries of this kind resulting from breach of contract, there would appear to be no reason why injuries of this kind could not be the subject of compensation under the Ontario Human Rights Code. There is no reason to interpret the phrase "any injury" in s. 14(c)(d) as to exclude injuries to an individual's psychological well being.
47It would appear beyond dispute that Boards of Inquiry have the power to award damages based on both monetary loss and psychological injury. Such being the case, we must determine what is appropriate in this particular instance.
48With respect to specific damages, Mr. Bader urged the Board to award a sum based on loss of wages from July 30th, 1980, when the applicant left her employment, until September, 1980 when she once again secured employment. Therefore, the total sought is five weeks of lost wages at $75 per week, for a total of $375.
49In awarding special damages, one must look to the efforts of the complainant to mitigate his or her losses. That is, after dismissal or termination of employment, if the complainant could have secured employment elsewhere and thereby reduce his or her loss, the complainant has an obligation to do so. The extent of that obligation was discussed in Torres at page 55 where Professor Cumming stated:
Thus the duty to mitigate is a duty to act reasonably. It will be a question of fact in each case as to whether a complainant made reasonable efforts to reduce his or her losses.
50In the circumstances of this case, I find that Cynthia Graesser acted reasonably in attempting to mitigate her losses. She testified that in the summer of 1980, job prospects and opportunities were scarce. She further testified that she "walked the streets during August and September putting applications in at different places." As Cynthia Graesser was unable to mitigate her losses, Mr. Porto must compensate the full amount of lost wages. I award Ms. Graesser special damages in the amount of $375 for lost wages.
51Determining the general damages in this case is not an easy task. While it is not easy to do, in fairness to the complainant, the Board must estimate what appears to be fair in the circumstances. In determining the amount, it is helpful to look at previous decisions. As Professor Cumming states at page 60 in the Torres decision:
Although the nature of the harassment in individual cases will be the ultimate determinant of the quantum of damages, consideration should be given to awards made in previous cases.
52In Coutroubis and Kekatos v. Sklavos (supra), the Board, in awarding the complainants $750 each as general damages stated at page 61:
... This Board is of the view that such an amount is reasonable and, if anything, counsel for the Commission exhibited an appropriate restraint in suggesting that figure. The complainant Co[u]troubis was a 17 year old girl at the time of the incident and the respondent was old enough to be her father. While the complainant Kekatos may not have been as vulnerable, the attack upon her was more physically aggressive. The evidence indicates that the incidents had a severe and lasting effect on the complainants up to the present time.
53In Hughes and White v. Dollar Snack Bar (R.W. Kerr, August 20, 1981) the complainant was awarded $750. While there was little suffering, the Board looked at the ongoing nature of the event.
54These cases and others led Professor Cumming, in Torres, to enumerate a list of factors considered in awarding general damages. While the list is not exhaustive, it is a helpful guide in establishing relevant factors.
To summarize then, the following factors have been considered in the awarding of general damages in the cases of sexual harassment.
(a) The nature of the harassment, that is, was it simply verbal or physical as well;
(b) The degree of aggressiveness and the physical contact in the harassment;
(c) The ongoing nature, that is, the time period of the harassment;
(d) The frequency of the harassment;
(e) The age of the victim;
(f) The vulnerability of the victim;
(g) The psychological impact of the harassment upon the victim.
55Mr. Bader has urged the Board to adopt the "thin skulled plaintiff" test when assessing the amount of general damages that should be awarded to Ms. Graesser in this case. That is, when one commits an offence to another, one takes the victim as one finds him or her. Subheading (f) in the above list contemplates this factor.
56At the time of the incident Ms. Graesser was 17 years old. Ms. Graesser testified that since the incident she has been wary of office work and continues having problems adjusting to normal office interaction between employees. In addition she has suffered guilt and fear as a consequence of the incident. Mr. Bader argued that many of the problems can be traced as far back as to when Ms. Graesser was 12 years old when she was raped by her uncle. He argued that the events of July 30th, 1980 may have triggered some of the anxieties and fears associated with this childhood incident.
57While I agree with Mr. Bader that Ms. Graesser should be compensated for the damages resulting from the incident of July 30th, 1980, and while I agree that the damage was probably magnified due to previous events, I have difficulty assessing the dollar worth of such damage based on that consideration alone. The vulnerability of the victim is only one factor to be considered.
58I think the frequency must also be looked at, as well as the aggressiveness of the harassment. The actual physical harassment of Ms. Graesser occurred on only one occasion. However, the physical contact was persistent and has left the complainant emotionally scarred. This Inquiry was likely accentuated due to the unfortunate events of Ms. Graesser's childhood.
59I disagree with Mr. Bader that Cynthia Graesser should be awarded $2,000 as general damages. I think that figure, in light of the circumstances, is too high. Rather, I think that general damages in the amount of $750 is appropriate.
60In addition to the monetary award, Mr. Bader requested that Mr. Porto give to the complainant a letter of apology. Such a request is not out of line in the circumstances.
ORDER
61For the foregoing reasons, this Board of Inquiry orders that Mr. John Porto, the respondent:
Write a letter of apology to the complainant, Ms. Cynthia Graesser;
Pay forthwith to the complainant, Ms. Cynthia Graesser, the following:
(a) as damages for lost wages, the sum of three hundred and seventy-five ($375) dollars, and
(b) as general damages, the sum of seven hundred and fifty ($750) dollars, a total amount of one thousand, one hundred and twenty-five ($1,125) dollars; and
- Cease and desist in the sexual harassment of employees who may work under his supervision in the future.