Robinson v. Company Farm Ltd., 1984 CanLII 5038

Robinson v. Company Farm Ltd.

1984-06-05

Ontario Board of Inquiry

CHRR Doc. 84-051

Barbara Robinson

Complainant

v.

The Company Farm Limited and Wilson Nuttall

Respondents

Date of Decision:

June 5, 1984

Before:

Ontario Board of Inquiry, Peter A. Cumming

Appearances by:

Bella Fox, Counsel for the Ontario Human Rights Commission and Barbara Robinson

Bernard A. Dumont, Counsel for The Company Farm and Wilson Nuttall

SEXUAL HARASSMENT — sexual advances by employer

Summary: The Board of Inquiry finds that Wilson Nuttall, President of The Company Farm Limited, sexually harassed Barbara Robinson by making sexual advances to her and subsequently terminating her employment when she refused to comply.

Robinson was employed by Nuttall to cut grass on a sod farm. She worked for approximately six weeks. Nuttall invited her to go to his cottage with him and indicated it would be in her interest in terms of her job to do so. Robinson declined the invitation and the next day she was told by Nuttall that he was replacing her.

Where there is a conflict in the evidence, the Board of Inquiry accepts the evidence of Robinson.

The Board finds that these events amount to a contravention of the Ontario Human Rights Code and orders compensation in the amount of $600 for lost wages and $750 for general damages.

INTRODUCTION

1This hearing dealt with a Complaint (Exhibit #2) by Mrs. Barbara Robinson, of Lively, Ontario, formerly of Massey, Ontario, alleging discrimination in employment because of her sex against the Respondents, The Company Farm Limited, and Mr. Wilson Nuttall, the President of the corporate Respondent.

2Mrs. Robinson began work as a tractor operator cutting grass for the corporate respondent May 21, 1981, and left that employment July 1, 1981. She alleged that she suffered sexual harassment by Mr. Nuttall while she was an employee, and that she was refused training and a transfer to another position, and was ultimately dismissed from her employment, because she refused to submit to Mr. Nuttall's sexual advances.

THE LAW

3The Complainant alleges a breach of paragraphs 4(b), (c) and/or (g) of the Ontario Human Rights Code, R.S.O., 1970, c. 318, as amended (now R.S.O. 1980, c. 340), (hereafter "the Code") because of her sex. These provisions read:

4(1) No person shall.

(b) dismiss or refuse to employ or to continue to employ any person;

(c) refuse to train, promote or transfer an employee;

(g) discriminate against any employee with regard to any term or condition of employment,

because of ... sex ... of such person or employee.

4It is clear that unlawful discrimination against a person in respect of employment "because of ... sex" includes discrimination through sexual harassment of the person. See Olarte et al. v. DeFilippis and Commodore Business Machines Limited (October 11, 1983: Ontario), (1983) 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705, and Giouvanoudis v. Golden Fleece Restaurant and Carras (December 21, 1983: Ontario [1984 CanLII 5044 (ON HRT), 5 C.H.R.R. D/1967]) for a review of the jurisprudence on both the general subject of "discrimination because of sex," and the particular sub-topic of "sexual harassment. "

THE EVIDENCE

5The Complainant, Barbara Robinson, is now age 31 and a veterinary assistant. She resides at present in Lively, Ontario, but at the times material to her complaint, in 1981, resided in Massey, Ontario, both towns being near to the City of Sudbury.

6In the spring of 1981, seeking employment, she approached the individual Respondent, Wilson Nuttall, whom she and her husband (a school principal in Massey) knew socially, about the possibility of employment.

7Mr. Wilson Nuttall, who is now 55 years of age, is the sole or principle equity owner, and the President, of the corporate Respondent, The Company Farm Limited, which includes within its business activities, sod farms near Massey and also near Elliott Lake, Ontario.

8Mr. Nuttall is obviously a successful businessman and a community leader in Massey, who has been active in endeavours such as the building of the arena, Agricultural Society fairs, and politics. He is an energetic and enterprising individual. He lives on the corporate Respondent's sod farm (hereafter the "Nuttall farm") about eight miles from Massey with his wife. They have two sons living on the farm, one of whom is married and who lives in a house adjacent to Mr. Nuttall's home. Both Mr. Nuttall and his wife, as well as these two sons, work in the family landscaping business.

9Mr. Nuttall hired Mrs. Robinson on a trial basis to work on the corporate Respondent's sod farm near Massey, as a grass cutter or mower, commencing May 21, 1981. In this job she drove a tractor, pulling what is called a "gang mower" which cuts the grass of the sod. On all of the evidence, it seems Mrs. Robinson was, at least, sufficiently competent at the job that her competency to do the job was not a problem. Moreover, it is clear that she enjoyed her work. Mrs. Robinson testified that at the time she was hired, she expected to cut grass all summer, and that in the fall she would be able to do some of the landscaping work on the farm.

10Mrs. Robinson worked six weeks, until July 1st, 1981, (Exhibit #4). She was paid on a basis of $4.50 per hour once a week, and earned a total of $704.00 from her employment with the corporate Respondent. She would work somewhat irregular hours, because she could not mow the grass while it was raining, or after a rain or heavy dew while the grass was still wet.

11The other workers at the Nuttall farm at the time Mrs. Robinson worked there, included two men who worked on the property all the time, being a son of Mr. Nuttall, and one Mike Fex. (Transcript, page 10). As well, there were crews who came at different times to do landscaping and remove sod. Generally, Mr. Nuttall would leave the farm early in the morning and return after Mrs. Robinson had left, so that Mrs. Robinson saw him infrequently.

12Mrs. Robinson testified that a few days after she had started working at Mr. Nuttall's sod farm, on a morning when it was raining, and she therefore could not be at work, Mr. Nuttall showed up at her house in Massey for no apparent reason. (Transcript, page 46). Mrs. Robinson's husband was home at the time, and Mrs. Robinson said she and her husband thought it was a "funny thing" that Mr. Nuttall had come. She said that she and her husband felt that Mr. Nuttall had no reason to be calling on her and seemed "flustered" when her husband answered the door. (Transcript, page 47).

13Subsequently, and about a week after she started her employment, Mrs. Robinson testified that while she was cleaning up in the shop building on the sod farm, Mr. Nuttall came over to her and "kissed me on the lips and patted me on the – excuse me – ass, on the bottom and went off." (Transcript, pages 12, 37, 45). However, Mrs. Robinson also said that Mr. Nuttall was excited at the time because a plane had just landed at the farm. (Transcript, page 12). Mrs. Robinson testified that a few days later while she was trying to clean up the shop building and was alone with Mr. Nuttall, she felt that Mr. Nuttall "was trying to corner" her and when she walked out of the building quickly he put his arm around her and told her not to be so "jittery," but dropped his arm when he saw another employee outside. (Transcript, pages 12, 13).

14Mrs. Robinson testified that on June 24, 1981, she had come to work at the farm to get her cheque. After receiving it, she left to go home at about 10:30 a.m. because it was raining and she could not cut grass. Mrs. Robinson testified that Mr. Nuttall asked her to meet him at his cottage, located along the same road where she lives, but she told him she was "not interested." She testified he then repeated the request to her to come to his cottage adding that it would be "to your better interest to your job," to do so. (Transcript, page 14). In 1981, Mr. Nuttall had a cottage about three miles from Massey situated on 160 acres adjacent to a lake.

15Mrs. Robinson testified that she understood Mr. Nuttall to want to have a sexual liaison with her at his cottage, and was threatening her with a reprisal if she did not. She declined his invitation, saying she had laundry to do.

16Mrs. Robinson testified that the next day, June 25, she had difficulty maneuvering her tractor in the parking area, and that Mr. Nuttall got mad, doing it for her, and saying to her that he had not made up his mind yet but he might replace her with one Greg Caldwell. (Transcript, pages 14, 15). Mr. Nuttall said, according to Mrs. Robinson, that because Greg Caldwell was a student a rebate of $1.25 per hour could be obtained in respect of his wages. (Transcript, page 15). Mrs. Robinson protested, saying that this was unfair and was a threatened reprisal for her not agreeing to his sexual advance the day before, and that if he followed through with his threat she would go to the Human Rights Commission and "would string him up by the balls." (Transcript, pages 15, 16). Mrs. Robinson said that she then went to her husband at his school and told him what had happened. She telephoned the Human Rights Commission in Sault Ste. Marie and was told to deal with the Sudbury office and she sent a registered letter dated June 27 (Exhibit #3). (Transcript, page 17).

17Mrs. Robinson returned to her job the next day. She testified that she was told by Mrs. Nuttall that she was to finish cutting the field she had been working on but then not to come back for the rest of the week. (Transcript, page 18).

18Mrs. Robinson testified she returned to the farm later to ask Mr. Nuttall why she would not be working the balance of the week but that Mr. Nuttall was evasive and would not give her an answer as to whether she had been laid off or terminated saying that "we don't need you right now and we will call you if I want you." (Transcript, page 19). The date of this incident was the last day Mrs. Robinson worked for the corporate Respondent. She signed and filed a complaint (Exhibit #2) with the Human Rights Commission on July 3, 1981. The oral testimony of Mrs. Robinson was unclear as to the precise date when Mrs. Robinson ceased to work for the corporate Respondent. The Complaint refers to July 1, 1981, and the date would be fresh in Mrs. Robinson's mind when she signed her Complaint two days later. Moreover, the corporate Respondent's employment record (Exhibit #4) sets forth July 1, 1981, as the date on which she ceased to be employed.

19Another worker, Greg Bulmer, a truck driver, testified that he was about 30 feet away while Mr. Nuttall and Mrs. Robinson were arguing. He said he could only hear what they were saying when their voices were raised, but could tell Mrs. Robinson was upset and heard her say to Mr. Nuttall that "You can't do that to me, that's sexual harassment." (Transcript, pages 90, 91). Mr. Bulmer said that afterwards, some 15 to 20 minutes later, he talked with Mrs. Robinson and she said Mr. Nuttall had asked her to his cabin and implied that if she did not go she might lose her job. (Transcript. pages 90–94).

20Lorne Caldwell testified that he had been a foreman at The Company Farm's Massey sod farm for four years. He testified that Mrs. Robinson made a "supreme effort" at her work "and did it properly" (Transcript, page 68). He testified that he never heard any complaints about her work. He did not hear her altercation with Mr. Nuttall June 25, but said that she came up to him afterwards very upset saying she had been laid off because she had rejected Mr. Nuttall's advances. (Transcript, pages 70, 71).

21Mrs. Robinson wrote (Exhibit #3) to the Human Rights Commission June 27, 1981, of her concerns, four days before she ceased to be employed by the corporate Respondent. The recitation of events in her letter (Exhibit #3) is consistent with her later Complaint (Exhibit #2) and her oral testimony three years later, although in her oral testimony there was some confusion over dates which was understandable given the lapse of time. The evidence of Greg Bulmer and Lorne Caldwell, together with the fact that Mrs. Robinson wrote to the Human Rights Commission before her employment was terminated, tend to corroborate her version of events.

22Mrs. Robinson testified that she was angry, hurt and frustrated because she felt she had no control over her situation. She stated that there was a great deal of stress resulting from the comments made about her, which she attributed to Mr. Nuttall as the indirect source, because of the Complaint she made through the Human Rights Commission. Massey is a very small town and her dispute with Mr. Nuttall seems to have been a large topic of the local gossip. Rumours circulated about her personal behaviour and she and her husband became socially isolated. (Transcript, page 24). Mrs. Robinson attributed her subsequent separation from her husband as due, at least in part, to the stressful aftermath of her dispute with Mr. Nuttall. Mrs. Robinson was unable to find new employment for some time.

23The defence of the Respondents amounts to saying that Mrs. Robinson's story is a complete fabrication, and that her letter of June 27, 1981, was part of the fabrication, also designed to get back at Mr. Nuttall for her impending lay-off on July 1. The defence alleges that Mrs. Robinson was laid off on July 1 because there simply was not enough work for her to do. (Transcript, pages 100, 101, 108). It is clear that the grass grows more slowly in July (Transcript, page 41), so that cutting will be less frequent, although much depends upon the weather conditions of any given year. If there is more rain, there is more growth.

24The defence alleges that Mrs. Robinson was threatening Mr. Nuttall with a charge of sexual harassment unless he kept her on so that she could obtain the necessary qualifying time for eventual collection of unemployment insurance.

25The "Record of Employment" (Exhibit #4) filed with Employment and Immigration Canada by The Company Farm Limited suggests that Mrs. Robinson quit her job and that she "became quite hostile because (Mr. Nuttall) was not able to give her sufficient work to go on Unemployment Insurance. " However, this form was not prepared until September 18, 1981, which was some time after the dispute between Mr. Nuttall and Mrs. Robinson.

26In his testimony, Mr. Nuttall said that he refused to keep Mrs. Robinson employed just so she would have unemployment insurance. (Transcript, pages 100, 101, 114, 115). His defence was that he did not have enough work for her to do.

27Mrs. Robinson admitted on cross-examination that she was concerned that if her employment was terminated before she had put in the necessary qualifying time, she would be unable to collect unemployment insurance, but said this concern was expressed before the inception of her employment, and had nothing to do with her anger or hostility at the time she ceased to work for Mr. Nuttall (Transcript, pages 53–55).

28Mr. Nuttall's conversation with Mrs. Robinson on June 25, as she testified, suggested that Greg Caldwell might replace her. Mr. Nuttall testified that Greg Caldwell had worked for him from May through to September (Transcript, page 103). Mrs. Robinson testified that Greg Caldwell worked at least in part doing her job of cutting the grass after she ceased to be employed. (Transcript, pages 56, 57).

29An examination of the payroll records (Exhibit #5) of the corporate Respondent suggests that Greg Caldwell did not work more than 7.5 hours in June, 1981, but worked steadily in July and August. That is, while he was nominally an employee of the corporate Respondent at the same time as Mrs. Robinson in June, 1981, the very substantial part of his actual employment commenced with Mrs. Robinson's departure. It seems he was a student before July, who worked in the summer months of each year for the corporate Respondent (Transcript, pages 55, 56, 57). The defence sought to suggest that Greg Caldwell was not used to replace Mrs. Robinson, but that he just switched his duties (Transcript, pp, 55–57), but it is clear from all the evidence that this was not really the true situation.

30There was one witness, Wendy McLelland, who gave similar fact evidence.

31Wendy McLelland, a resident of Elliott Lake, testified that she had worked at the corporate Respondent's Elliott Lake sod farm in 1978, when she was 17, as a labourer, laying sod, planting trees and gardening. She said that about 10 days into her employment, she went one morning at 8:00 a.m. to the location of the project site where the workers were to meet. She testified that none of the other employees showed up for work, but Mr. Nuttall arrived about 8:30 a.m., saying that she would not be working that day as it had rained during the night, and he had tried unsuccessfully to reach her by telephone.

32Ms. McLelland testified Mr. Nuttall asked her for coffee and they went to the Sault College cafeteria. She said that while talking she felt he put his chair too close to hers and that as they were leaving, he put his arm around her shoulder. She testified that while Mr. Nuttall was driving her home he leaned over and patted her leg (Transcript, pages 85, 86). Ms. McLelland testified that Mr. Nuttall asked her to come with him to a convention in Sault Ste. Marie, and to a landscaper's convention at the Royal York Hotel in Toronto, and said he wanted to teach her to fly his plane, and that he owned a cottage. (Transcript, page 76)

33Ms. McLelland was only 17 at the time, and had never experienced anything like this. She is a very sensitive person, as her demeanour as a witness revealed clearly, who was simply astounded by her employer's advances.

34Ms. McLelland was very shocked and offended by Mr. Nuttall's proposition to her, and refused to return to the job the next day, telling the supervisor who phoned simply that she quit and that she did not want to talk about it.

35Ms. McLelland was subjected to a rigorous cross-examination, and her credibility was attacked aggressively. I have no doubt in finding that she was a completely truthful witness. She does not know the Complainant, Barbara Robinson, and she tried to be very fair and truthful in her testimony. I have no doubt in finding that Mr. Nuttall sexually propositioned Ms. McLelland.

36There is no suggestion that Ms. McLelland's employment was jeopardized by Mr. Nuttall's advance to her, and the verbal advance in itself, given all the circumstances, would not constitute sexual harassment. A mere isolated invitation by an employer to an employee to have an affair is, by itself, not unlawful, but rather is simply a matter of morality. There is a distinction between philandering and harassing.

37Mr. Nuttall was not asked in his examination-in-chief about Wendy McLelland's testimony. However, in cross-examination he denied making any sexual proposition to her, claiming that her testimony "was a fabrication." (Transcript, page 112). At that point, I interjected,

CHAIRMAN: Let's stop at this point. Perhaps I shouldn't interject but I want to say this and I am going to ask the witness something. Mr. Nuttall I am sure your counsel has told you but there is a difference between sexual proposition and sexual harassment alright. Let's take it one step at a time and the question is this. Did you make or did you not make a sexual proposition to Wendy McLelland, whether it was some or open or did you have that intent in mind?

A. Absolutely not Sir. If I invite a friend for a cup of coffee –

CHAIRMAN: No but she said, you heard her, she says that you invited her to come down to the Royal York to a convention and you invited her to the Sault to a convention. Now all that she suggested in her testimony was that you were making a sexual advance. Before you answer there is a difference between a sexual advance and sexual harassment. A sexual harassment may well include a sexual advance. Do you understand what I am saying?

A. Yes.

CHAIRMAN: The question at this point is not whether you sexually harassed Wendy McLelland and it's not to pass any comment upon your morality or your personal behaviour at all it is simply to ask you was she telling the truth here when she said that you invited her down to the Royal York and the Sault to conventions?

A. No. First the conventions don't take place at the Royal York. They take place in Toronto at the Sheraton Centre.

CHAIRMAN: Well –

A. And I don't ever go to the Sault except to pick up tender documents. I haven't been to the Sault twice in the last ten years.

CHAIRMAN: So you're saying that she is lying or mistaken when she said that you invited her to go away with you?

A. I am saying that from my experience of Human Rights they put words into her mouth.

CHAIRMAN: Well just take her words at their face value and what she said, whatever might have caused that you know whether they are true or not because you are either the person that said them to her or you're not. You're saying you're not.

A. Yes they're not true Sir.

MISS FOX: So in other words your evidence is that her allegations about your conduct are completely false?

A. It's very possible that I might have taken her out for a cup of coffee. It's very possible that I could have put a hand on her shoulder but that's where it stopped.

Q. So you're saying the evidence about asking to go to the Sault or something about the Royal York, that is false?

A. Well of course take a look at her, she isn't the kind of girl I'd go out with.

38It was not what Ms. McLelland said that was important but rather that Mr. Nuttall categorically denied what she said.

39Credibility was very much in issue in this case. It was quite clear that Ms. McLelland was an impartial, truthful witness and I accept her testimony. I asked the above questions of Mr. Nuttall to give him a further opportunity to establish that he was being truthful in respect of his evidence concerning Mrs. Robinson.

40Mrs. Robinson was quite an impressive witness, who was unscathed by a thorough and rigorous cross-examination.

41She answered questions straightforwardly, not withstanding that her answers sometimes caused her personal embarrassment. Mrs. Robinson testified frankly that she had once been unfaithful to her husband. She said that her husband had the custody of their only child, a daughter.

42Other questions in cross-examination seemed to imply that her behaviour might offend conventional standards or morality. (Transcript, page 32). Whatever a female employee's personal moral standards might be in terms of her sexual relationships, an employer is not entitled to sexually harass her. Her personal behaviour is her own business, just as his is. Moreover, if she is sexually harassed, her character and behaviour outside of the employment relationship are irrelevant. Whatever her personal behaviour outside the workplace might be, it does not excuse an employer in his sexual harassment of her.

43As I have already emphasized, credibility was very much in issue in this case. I observed the demeanour of the witnesses carefully, and I have also reviewed the transcripts and exhibits thoroughly. Where there is conflict, I accept Mrs. Robinson's evidence over that of Mr. Nuttall. She was telling the truth and I so find, when she testified that he made a sexual advance to her by asking her to meet him at the cottage, and when she testified that he left her with the intended clear impression that it would be to her advantage from the standpoint of her employment relationship, to comply with his request. Mr. Nuttall did not need her as an employee all that much, given that coming into July the grass was not growing as quickly, given that others, particularly Greg Caldwell, were available to do the mowing task if she was no longer an employee, he knew she needed money through her employment, and he thought she was of loose moral standards. When Mrs. Robinson rebuffed his sexual proposition, and when she stood up to him forcefully, he let her know she was not needed as an employee, and then told her not to return to work unless he called her. Quite clearly, Mr. Nuttall terminated Mrs. Robinson's employment in the circumstances. Just as clearly, he would not have terminated her employment if she had complied with his sexual advance.

APPLICATION OF THE LAW TO THE EVIDENCE

44The Respondent, Wilson Nuttall is in breach of paragraph 4(1)(b) of the Code, in that he dismissed the Complainant from her employment with the corporate Respondent because of her sex. The corporate Respondent is liable for the unlawful discrimination in employment of the individual Respondent, Wilson Nuttall, because he is the directing mind of the corporate Respondent and the discrimination by him arises in the context of his carrying out his duties in the business of the corporate Respondent.

45Considering all of the evidence, I find that the individual Respondent, Wilson Nuttall, unlawfully discriminated against the Complainant because of her sex, in making a sexual advance to her coupled with a threat of reprisal in respect of her position as an employee if she did not acquiesce in his advance, and in terminating her employment because she would not comply with his wishes in this regard. Such conduct constitutes sexual harassment and is contrary to paragraph 4(1)(b) of the Code.

46I have reviewed the principles relating to damage awards in cases of sexual harassment in Torres v. Guercio, (1982) 3 C.H.R.C. D/858. Applying such principles to the instant situation, an award of $600.00 for lost wages, and $750.00 as general damages for injured and hurt feelings of the Complainant, both as compensation, and also in vindication of her right not to be discriminated against in employment because of her sex, seems appropriate. However, in assessing general damages, I have ignored the evidence about rumours and gossip that caused anguish to Mrs. Robinson after she made her Complaint. There simply was not sufficient evidence that linked these difficulties to the Respondents. I have also omitted from consideration the Complainant's separation from her husband. Whether or not the complaint against Mr. Nuttall was a factor in Mrs. Robinson's marital difficulties, it could not be said to be a proximate cause of the separation. The separation was caused by the decision of either, Mrs. Robinson or her husband, or both, not by the Respondents.

47The corporate Respondent is also liable for the sexual harassment by the individual Respondent, as it came in the course of his managing the corporate Respondent's business.

ORDER

48This Board of Inquiry having found the Respondents to be in breach of paragraph 4(1)(b) of the Ontario Human Rights Code, R.S.O. 1980, c. 340 in respect of the Complainant, for the reasons given, this Board of Inquiry orders the following:

1. The Respondents are jointly and severally liable to pay forthwith to the Complainant, as follows:

(a) as damages for lost wages, the sum of six hundred ($600.00) dollars; and

(b) as general damages, the sum of seven hundred and fifty ($750.00) dollars.

2. The Respondent, Wilson Nuttall, shall cease and desist forthwith in the sexual harassment of female employees of the corporate Respondent.

3. The Respondent, The Company Farm Limited, shall do whatever is necessary to ensure that the Respondent, Wilson Nuttall, ceases and desists forthwith in the sexual harassment of its female employees.