Watt v. Niagara (Regional Municipality), 1984 CanLII 5042

Watt v. Niagara (Regional Municipality)

1984-09-25

Ontario Board of Inquiry

CHRR Doc. 84-069

Linda Watt Complainant

v.

Regional Municipality of Niagara and Alex Wales Respondents

Date of Decision: September 25, 1984

Before: Ontario Board of Inquiry, John D. McCamus

Appearances by: B. Fox, Counsel for the Ontario Human Rights Commission and Linda Watt J.R. Barr, Counsel for the Regional Municipality of Niagara and Alex Wales

SEXUAL HARASSMENT — definition of sexual harassment — poisoned work environment — sexual advances by supervisor — INTERPRETATION OF STATUTES — definition of "sexual harassment"

Summary: The Board of Inquiry dismisses a complaint made by Linda Watt alleging that she was subjected to gender-biased conduct and sexual harassment by her supervisors at the Regional Municipality of Niagara.

Ms. Watt was a member of a road crew and she alleged that Alex Wales and Des Brady discriminated against her when they transferred her to another road crew for a period of time. She also alleged that they attempted to force her to resign, and created an abusive working atmosphere. Ms. Watt alleged that these actions amounted to differential terms or conditions of employment based on sex.

The Board finds that the transfer to another road crew was caused by genuine concerns about Ms. Watt's work performance. In addition, the Board finds that although Alex Wales was admittedly biased against women working in his area and although offensive remarks were made to Ms. Watt, these remarks and jokes did not occur with sufficient frequency to create an "abusive atmosphere" contrary to the law.

The complaint is dismissed.

I

1The complaint giving rise to the present proceedings alleges discrimination with respect to terms and conditions of employment by the respondent employer, The Regional Municipality of Niagara, and by one of its supervisors, the respondent Alex Wales. The complainant, Ms. Linda Watt, alleges that the discriminatory treatment was motivated by attitudes of sexual discrimination. Counsel for the complainant and the Commission have characterised this case as one of "sexual harassment" though, as will be seen, if the allegations of the complainant were accepted in their entirety, this would not constitute a case of "sexual harassment" as that term has come to be employed in the case law concerning matters of this kind. The allegations would suggest, rather, that the respondent employer, through the actions of its agent, Mr. Wales, was either attempting to provoke an incident which would lead to the complainant's dismissal or, alternatively, was creating a work environment significantly different from that in which male employees were permitted to work. If the substance of either of these allegations were to be sustained by the evidence brought in these proceedings, a breach of the following provision of the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended, would be established:

4(1) No person shall,

(g) discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.

If Mr. Wales sought to provoke an incident giving rise to dismissal because Ms. Watt was a female employee, or if he did, in fact, create a more oppressive working environment for women than for men, this would clearly constitute discrimination against an employee on the basis of sex with regard to a condition of employment.

2Counsel for the complainant and Commission did, however, place considerable reliance on the recent cases dealing with the concept of "sexual harassment" and accordingly, in the next section of this decision, that case law will be reviewed and assessed for its pertinence to the allegations at issue in the present proceedings.

3This case arises against the factual background of the introduction of female workers into a traditional area of male employment with the respondent Municipality, the road crews which essentially engage in snow removal during the winter months and the cutting of grass on municipal lands during the summer months. The evidence led in these proceedings clearly establishes that the work environment into which the complainant and another female co-worker, Ms. Maureen Marshall, arrived was, as one might expect, a coarse and rough environment. Many witnesses testified to the general effect that the language used by workers was quite crude and obscene as a general matter. There was a good deal of abuse, good natured or otherwise, meted out in conversation and, indeed, there was some evidence of individuals being disciplined for fighting on the job. As counsel for the respondent noted in his argument, a gathering of the road crew would not be a "cultural event."

4The complainant came into this environment on a temporary basis in January of 1978 and became a permanent seasonal labourer and mower in November of 1978. Prior to this, Ms. Watt had worked as a General Clerk in the Public Works Department Administration Section. Ms. Marshall began her work for the respondent in 1975, spending the first year as an office clerk and then working as a dispatcher in the Roads Division, working in the summer months as a mower. Ms. Marshall became a full-time labourer in the Roads Division in 1979. Although Ms. Marshall and Ms. Watt did not work together with any frequency, Ms. Marshall normally being assigned to the Niagara-on-the-Lake patrol and Ms. Watt normally being assigned to the Thorold patrol, it is evident that the working environment was essentially similar in both locations. Ms. Marshall, in particular, testified with respect to the tension generated by the roughness of the working environment. Ms. Marshall stated that there was a good deal of swearing in the yard and that she felt she had to engage in this pattern of behaviour as well. She said that "In order to try to be accepted with them, that you have to put yourself at their level and then when it comes time to go home, then you go back to yourself." (Transcript, page 272)

5It is not surprising that the complainant and Ms. Marshall found the Roads Division to be an apparently somewhat intimidating and difficult work environment. No doubt many men would find it to be so as well, though perhaps men would typically enjoy the questionable advantage of having greater familiarity with what is a type of behaviour often engaged in by males in the absence of women. The important point for present purposes, however, is that it is no part of the case of the complainant or the Commission that the respondent employer was in breach of its obligations under the Code by failing to do something about the general character of the work environment. Thus, for example, it was not urged upon this Board of Inquiry that the respondent should have anticipated this "culture shock," as it were, and attempted to ensure a more accommodating environment for the arrival of female employees. Nor was it suggested that the respondent employer failed to respond to complaints concerning this general environmental question. In raising these points, it is not my purpose to suggest that such arguments and complaints should have been made or that, if made, would have been successful. Rather, as this is a case in which the hostility of the work environment, in some sense, is in issue, it is important to note that it is not this general atmosphere of obscenity and roughness which is the subject of complaint. The allegations upon which the present complaint is founded relate to very specific incidents involving the complainant's supervisor, Mr. Wales and, in two cases, her foreman, Mr. Des Brady. It was urged on behalf of the complainant and the Commission that these particular instances of alleged misconduct constitute the imposition of a discriminatory work condition contrary to the provisions of the Code.

6The incidents in question fall broadly into two categories. First, there are allegations of conduct on behalf of both Wales and Brady which would suggest that either one or both of them were engaged on a course of attempting to provoke the complaint's dismissal. Thus, it was alleged that after disciplining the complainant and a co-worker, John Burns, for the same misconduct, Mr. Wales said to Burns that he should not worry about this episode as it was, in fact, Ms. Watt whom he was "out to get." It was alleged that on another occasion Mr. Wales said to Ms. Watt, without provocation, that she should "worry about her job." Further it was alleged that Mr. Brady had approached a fellow worker with a view to getting up a petition to have Ms. Watt removed from her job.

7Secondly, there were allegations made concerning insulting or obscene remarks being made by Mr. Wales and, on one occasion, by Mr. Brady either to the complainant or to Ms. Marshall. Each of these incidents will be considered in due course in this decision, but it is important to note at this preliminary point that none of these incidents could be said to have involved something in the nature of a sexual overture by either Mr. Wales or Mr. Brady to the complainant. Although the complainant was apparently deeply offended by each of these alleged occurrences, she did not allege that she construed the remarks of either man in this way. Mr. Brady, for example, is alleged to have made a remark suggesting that an unpleasant odour had emanated from the complainant. As will be seen; this characterisation does not do justice to the offensiveness of the alleged conduct, but it is perfectly obvious that the remark in question was not an overture of some kind to the complainant, nor was it construed as such by her. Similarly, an occasion on which Mr. Wales, in his view of the matter at least, joked about his "passion pills" was found to be deeply offensive by the complainant but was not thought by her to represent, in any respect, an overture of some kind. Mr. Wales was some forty years her senior and a one-time friend of her father, and she conceded in her evidence that she had no reason to believe and did not believe that he was making, tacitly or otherwise, an improper suggestion of this kind.

8The gravamen of the complaint with respect to these remarks, then, is that they constituted a term or condition of her employment imposed on her by reason of discrimination based on gender.

9In response to these allegations, it has been submitted on behalf of the respondents that the complainant was not subjected to unfair treatment on discriminatory grounds. Such conflict as arose between the complainant and Mr. Wales was to be explained by the fact that the complainant was not a very satisfactory employee and Mr. Wales, for his part, was a stern disciplinarian. It was stressed on behalf of the respondents that no similar problems seemed to have emerged with respect to Ms. Marshall, although she was employed in the same environment and was also supervised by Mr. Wales. Further, it was argued that at least some of the allegations with respect to some of the incidents in question are not true and further, that some of the remarks of Mr. Wales in particular, when placed in context, were not as offensive as might appear at first impression. With respect to such insulting or obscene remarks as may have been uttered by Mr. Wales and Mr. Brady, it is the respondent's submission that however tasteless they may have been, they did not occur with such frequency as to constitute a discriminatory term or condition of employment. Counsel for the respondents did not concede that behaviour of the kind alleged could constitute a discriminatory work condition, but submitted rather that if such conduct could be so characterised under the Code, it would have to occur with much greater frequency than it occurred in the present case.

10Finally, it was argued on behalf of the respondents that even if the conduct of either Mr. Brady or Mr. Wales constituted a contravention of the Code, this was not conduct for which the respondent municipality should be vicariously liable. The respondent municipality, it was argued, had demonstrated that it was anxious to comply with the Code in matters of this kind. The respondent had not hesitated to respond positively to the applications of the complainant and Ms. Marshall for employment in this area of work which had been previously undertaken exclusively by men. Moreover, no complaint had been made by the complainant either to management or to her trade union, and the respondent municipality was therefore not in the position of having failed to respond to such a complaint. In counsel's view, the respondent municipality could not be liable unless one could find, at management levels superior to that of Mr. Wales, either a policy of a discriminatory nature or a failure to take action with respect to a complaint of unfair treatment.

II

ISSUES OF LAW

11As previously mentioned, counsel for the complainant and the Commission has submitted that the circumstances alleged in the present case amount to "sexual harassment" and places considerable reliance on the decisions of Boards of Enquiry appointed under the Ontario Code dealing with this concept. In particular, reliance was placed on the decision of the Board of Enquiry in Cherie Bell v. Ernest Ladas and Flaming Steer Steakhouse Tavern Inc. (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155. (Mr. O.B. Shime, Q.C.)

12The particular passages in Mr. Shime's judgment on which counsel relied will be considerd in due course. As a preliminary step, however, it will be useful to consider in a general way, the jurisprudence dealing with cases of sexual harassment.

13The concept of "sexual harassment" was first given clear recognition by an American court interpreting provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. Paras. 2000E-2000E17) which are similar in their essentials to Section 4 of the Ontario Code. See Williams v. Saxbe (1976), 413 F. Supp. 654 (D.D.C.), rev'd on other grounds, sub. nom. Williams v. Bell (1978), 587 F.2d 1240 (D.C. Cir.). It is important to note that what was accomplished in Williams and in several later American and, eventually, Canadian cases was to adopt an interpretation of this legislation which appeared to some, at least, to be controversial. Prior to the evolution of this line of authority, there was no question but that these legislative provisions clearly prohibited such conduct as a refusal to hire women, or a practice of refusing to promote them. Indeed, the imposition of any term or condition of employment on the members of either sex would clearly constitute a contravention of the provisions of Title VII or the Ontario Human Rights Code. The issue which surfaced in the sexual harassment cases and, parenthetically, it may be observed that it is difficult to see why it might have been considered so problematic a question, was whether the imposition of sexual demands by supervisors as a condition of receiving some employment benefits such as promotion, would constitute a contravention of legislation of this kind. Some courts were persuaded by the argument that an employee who was, for example, dismissed as a result of the failure to comply with such demands was dismissed, not because of membership in a particular sex, but rather because of the refusal to submit to the demand in question. Such dismissals, though unjust, were not based upon gender bias. In Williams and in later cases, the courts apparently had no difficulty in holding that inasmuch as membership in a particular sex was a prerequisite to receiving such demands, such individuals were being subjected to a discriminatory work condition which infringed legislative provisions of this kind.

14In a recent, and illuminating, account of the American experience with sexual harassment claims, sexual harassment was defined as "the exploitation of a powerful position to impose sexual demands or pressures on an unwilling but less powerful person." See "Sexual Harassment Claims of Abusive Work Environment" under Title VII (1984), 97 Harv. L. Rev. 1449 and 1451. Two different categories of sexual harassment claims are then explored in this article. First, the category of "quid pro quo" sexual harassment is identified. These are situations in which an employee is forced to make a choice between submitting to sexual demands or forfeiting some employment benefit. Such claims were the first to be recognised by the American courts and it is indeed obvious that in such cases, once one accepts that the demand itself constitutes gender bias, a threatened dismissal or refused promotion, for example, falls easily within the contours of provisions such as those of Section 4 of the Ontario Code. In such cases employers have dismissed (Section 4(1)(b)) or refused to promote (Section 4(1)(c)) an employee "because of ... sex." Such an employee is, because of gender, being subjected to disparate treatment in the employer's decision-making concerning the terms of employment.

15The second category of sexual harassment claim, referred to in the Harvard article as "abusive environment claims" attacks "the persistent subjection of female employees to an intimidating, hostile or offensive working environment" (p. 1455). In the abusive environment claims, unlike the quid pro quo claims, there is no threat of reprisal explicitly made by the harassing employer. Professor Catherine MacKinnon, in her book Sexual Harassment of Working Women (Yale U.P., 1979) articulates the difference between two categories of claims in the following manner: (at page 40)

In the quid pro quo, the coercion behind the advances is clarified by the reprisals that follow a refusal to comply. Less clear, and undoubtedly more pervasive, is the situation in which sexual harassment simply makes the work environment unbearable. Unwanted sexual advances made simply because she has a woman's body, can be a daily part of a woman's work life. She may be constantly felt or pinched, visually undressed and stared at, surreptitiously kissed, commented upon, manipulated into being found alone, and generally taken advantage of at work – but never promised or denied anything explicitly connected with her job.

Recognition of abusive environment claims as being embraced by the provisions of legislation such as Section 4 of the Ontario Human Rights Code rests on a conclusion that the abusiveness of the environment has become "a term or condition" of the complainant's employment. As the Harvard article notes, in order to reach this conclusion one must address two difficult questions: (at page 1458)

1. When is harassment pervasive enough to constitute a violation?

2. From whose viewpoint is the factual determination made: the objective one of a reasonable defendant, the objective one of a reasonable plaintiff, the subjective one of the particular defendant, or the subjective one of the particular plaintiff?

The answers to these questions require the striking of a difficult balance. On the one hand, it is obvious that abusive environment claims may, in substance, arise from facts not significantly different from a quid pro quo claim. Thus, persistent taunting or teasing in a sexual manner may simply be a less straightforward manner of attempting to impose sexual demands on an unwilling employee. Even in cases where the conduct does not represent an indirect attempt at quid pro quo harassment, however, such conduct may in itself amount to sexual aggression imposed on an unwilling employee, making that employee's working environment very different indeed from that of others who are not subjected to such pressures. Thus, there is an important interest that would be protected by interpreting the phrase "term or condition" to embrace abusive environment claims.

16On the other hand, there are risks of unfairness in proscribing conduct that cannot be clearly defined, that is a fairly common, if unfortunate feature of our social environment, and that has not been previously understood to be unlawful in any sense. Further, the Harvard article suggests, "relations between the sexes may be chilled if men fear that behaviour offensive to a sensitive woman may be actionable in court." For reasons such as these, the Harvard article suggests that American courts have been somewhat more reluctant to recognise the legitimacy of the abusive environment claims than those of the quid pro quo category. Indeed, the burden of the Harvard article is to argue that such claims require greater recognition and, in an illuminating passage, the article goes on to suggest the following framework of analysis as being appropriate for claims of this kind (pp. 1458–59, footnotes omitted):

In order to establish a prima facie case of abusive environment sexual harassment, a plaintiff should have to prove that more than one isolated incident of sexually offensive conduct has occurred. Unlike quid pro quo sexual harassment, which may involve only a single incident (for example, firing or demotion for refusal to engage in sexual activity), abusive environments are characterized by multiple, though perhaps individually nonactionable, incidents of offensive conduct. The greater injury results not simply from a single offensive act or comment, but from the risk of repeated exposure to such behaviour. Thus, a finding that offensive conduct is a condition of the workplace should require a showing that such conduct occurs with some frequency. Nevertheless, because the effect of only one or a few physical advances or threats may be as devastating as that of repeated sexual propositions and innuendoes, the threshold for determining whether there has been repeated exposure should vary inversely with the offensiveness of the incidents.

This standard would recognize that a hostile or intimidating environment results from various combinations of frequency and offensiveness of exposure. In addition, it would strike a balance between the interests of potential plaintiffs and those of potential defendants by discouraging frivolous lawsuits while at the same time penalizing egregious conduct. By requiring evidence of more than occasional questionable conduct, the standard would deter blatant or persistent sexual misconduct but would not unduly discourage friendship and communication between the sexes in the workplace.

In order to determine whether a plaintiff has established a prima facie case of sexual harassment, courts must choose a viewpoint from which to evaluate the offensiveness of the challenged conduct. The proper perspective is the objective one of the reasonable victim. Such a standard would protect women from the offensive behaviour that results from the divergence of male and female perceptions of appropriate conduct, but it would not penalize defendants whose victims were unusually sensitive. Courts could further protect sensitive employees by finding liability whenever a defendant persisted in sexually related conduct after the plaintiff had notified him that she found it offensive. This exception to the reasonable victim rule – an exception already used by courts in cases of intentional torts – would also protect the defendant by ensuring that he would not be held liable for conduct not obviously offensive to a reasonable woman unless the victim had clearly communicated her distaste to him. By adopting the woman's point of view as the norm, the courts might heighten male sensitivity to the effects of sexually offensive conduct in the workplace.

Whether American courts will explicitly adopt this framework of analysis remains to be seen. Nonetheless, the comments concerning the need for something "more than occasional questionable conduct" and the suggestion that what must be examined is the combination of frequency and offensiveness are helpful and quite pertinent to one of the issues which surfaced for discussion in the present case. In light of the facts of the present case, however, it is important to emphasize that the "term or condition of work" generated by employer misconduct is what might be described as required exposure to sexually aggressive conduct by the employer. Thus, in suggesting that less frequent conduct might support a holding that a condition of work had been established, the illustration offered is that "the effect of only one or a few physical advances or threats may be as devastating as that of repeated sexual propositions and innuendoes." (at page 1459) In each instance the conduct in question is not merely insulting but constitutes a sexual advance or an act of, what has been referred to here as, sexual aggression.

17In recent years, the essential principles of the American case law on sexual harassment have been adopted by Canadian Boards of Inquiry and, in particular, Boards established under the Ontario Code, beginning with the decision of Mr. Shime in the Cherie Bell case, referred to above, in 1980. The Canadian cases on this subject have been usefully summarised and analysed by Professor Cumming, sitting as a Board of Inquiry under the Ontario Code in Olarte et al. v. Commodore Business Machines Limited et al. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705. It is unnecessary, therefore, to reproduce an analysis of this kind in the present decision. It is sufficient, for present purposes, to note that the Canadian cases, with apparently only one exception, have dealt with alleged instances of quid pro quo sexual harassment, that is to say cases in which employees were subjected to sexual advances, coupled with either threatened reprisals or actual reprisals for failure to comply with the employer's demands. The only case to which counsel for the respondent could direct me that deals with an abusive environment claim is Aragona v. Elegant Lamp Company Limited et al. (1982), 1982 CanLII 4879 (ON HRT), 3 C.H.R.R. D/1109 (Ratushny). In Aragona, the complainant alleged that she was the victim of frequent verbal harassment of a sexual and suggestive nature. It was not alleged that she was threatened with reprisals of any kind, but the alleged harassment, if it had occurred, could reasonably have been taken to be suggestive in the sense of indicating that the individual making the remarks, a co-owner of the respondent employer, would like to have sexual relations with the complainant.

18The evidence concerning the incidents in question was conflicting and ultimately, the Board of Inquiry was not persuaded that many of them occurred. Moreover, the Board accepted evidence to the general effect that the atmosphere in the workplace was one in which there was a good deal of sexual teasing and joking which was participated in and enjoyed by employer and employee alike. The Board did not find that the alleged statements which would most clearly have amounted to sexual overtures had in fact been made by the respondent. Further, it was the Board's view that in such an environment, there was some burden on an employee to indicate disapproval rather than, as appeared to be the case with the complainant, to respond in a joking fashion to what were plainly intended as jokes by the respondent. The latter observation was qualified, however, by a reference to the decision of Chief Judge Skelly Wright in Bundy v. Jackson (1982), 641 F.2d 934 in which it was held that, as a general matter, an employee ought not to be required, in a sexual harassment claim, to prove that the employee had in some sense resisted the advances made by the employer. In many circumstances, resistance would simply make the employee's work situation more miserable and it would be unrealistic to expect that it should occur.

19Given the nature of the Board's factual findings in Aragona, it was not necessary to reach a conclusion as to whether or not the alleged conduct would constitute a contravention of Section 4 of the Ontario Code. It does appear to have been the Chairman's view, however, that Section 4 would have been breached and Aragona thus offers some support for the view that abusive work environment claims would be covered by Section 4 and this is, indeed, a view shared by the present Board. Professor Ratushny did stress, however, that the Code must not be construed in such a way as to inhibit free speech and indicated that the Code did not preclude discussion of sexual matters in the workplace nor, indeed, did it prohibit remarks which are crude or in bad taste. With respect to the latter point, Professor Ratushny drew some support from the following comments of Professor Cumming sitting as a Board of Inquiry in Torres v. Royalty Kitchenware Limited et al. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858:

There are some employers (and employees) who simply are very crude and who speak in bad taste in discussing in the workplace their relationships with the opposite sex, or in telling sex "jokes." It is not the intent, or effect, of the Human Rights Code, or the functions of a Board of Inquiry, to pass judgment upon such persons. It is only "sexual harassment" that is unlawful conduct.

Professor Ratushny goes on to conclude as follows: (at page D/1110)

Thus, sexual references which are crude or in bad taste are not necessarily sufficient to constitute a contravention of section 4 of the Code on the basis of sex. 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. The line will seldom be easy to draw, particularly where, as in the present case, there is considerable dispute as to what exactly was said and done.

Again, the holding in Aragona, however, was that such "gender-based insults or taunting" as did occur, occurred in an environment and in circumstances in which the necessary threshold of creating a "condition of employment" of this kind was not attained and the complaint was, therefore, dismissed.

20To summarise, then, sexual harassment is a concept which has developed in American and Canadian case law in interpreting provisions such as Section 4 of the Ontario Code which holds that such provisions are contravened when an employer engages in sexually-aggressive conduct which is either (a) coupled with reprisals or threatened reprisals for failure to submit to the employer's demands for social and, perhaps, sexual contact with the employee in question (the quid pro quo claim) or (b) is of such frequency and gravity that, even though no reprisals are threatened or implemented, the aggressive conduct itself creates a condition of employment which, as it is targetted at members of one sex only, constitutes a contravention of the Code. With respect to the latter category, the Harvard article suggests, quite sensibly, that the greater the offensiveness of the sexual advance, the less frequency would be required to meet the "condition of work" threshold.

21Quite apart from cases of sexual harassment in the foregoing sense, however, it is entirely possible that men or women could be subjected to harassment resulting from gender bias which would engage the "condition of work" test of provisions like Section 4 of the Ontario Code. This is, indeed, true of any group identified by a discriminatory criterion, and the problem has in fact surfaced in the American and Canadian case law in the context of racial discrimination in the workplace. Thus, there have been claims in which members of a particular racial group who have not been the subject of disparate treatment with respect to work assignments, compensation, promotions or the other usual benefits of employment have nonetheless established that the hostile or demeaning conduct of their supervisors or fellow-employees has created an abusive work environment which itself constitutes a breach of the prohibition against discriminatory conditions of work.

22In an American case, Wells v. Murphy Motor Freight Lines (1980),488 F. Supp. 381 (D.C. Minn.) a black employee successfully claimed that the employer was liable under Title VII because he had tolerated a concerted pattern of racist harassment by the complainant's co-workers. Racist graffiti and anti-black articles and statements were found on notice boards and walls throughout the work area. The taunting of the complainant at lunch time led him to eat in a separate room, with the result that fellow-employees scratched signs on the door indicating that the area was for "niggers only" and that it was a "nigger lunch room." The court noted that the "racial harassment" that Wells experienced was not isolated, casual, accidental or sporadic, and held that it was "so excessive as to constitute an unlawful employment practice under Title VII" (at page 385) for which the respondent employer was responsible inasmuch as it had failed to take reasonable steps to discontinue this behaviour of its employees. American courts have stressed, however, that there must be a considerable level of offensiveness and frequency to conduct of this kind to establish a discriminatory work condition. Thus, in Cariddi v. Kansas City Chiefs Football Club et al. (1977), 568 F.2d 87, Mr. Cariddi, a supervisor of ticket-takers, complained that his supervisor had referred to him as a "dago" and to other Italian-American employees as "the Mafia." The trial court, which was upheld on appeal, held that the "derogatory ethnic comments made by Cariddi's superior were part of casual conversation and did not rise to the level necessary to constitute a violation of Title VII." (at page 88)

23A few cases of this kind have surfaced for consideration under Section 4 of the Ontario Code. In Simms v. Ford Motor Co. (unrep. 1970), Professor Krever, as he then was, dismissed a complaint concerning a racial slur which appeared to be an isolated incident but went on to state that: (at pages 18–19)

... to permit, even passably, a black employee in a plant where the majority of employees are white to be humiliated repeatedly by insulting language relating to his colour, by other employees, even I would go so far as to say, by non-supervisory employees, would be to require the black employee to work under unfavourable working conditions which do not apply to white employees. In such circumstances the employer has an obligation, imposed by section 4(1), to remove the cause of the discriminatory working conditions and police the prohibition against the humiliating conduct or language.

In a more recent case, Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743, Professor Cumming held that the working conditions in the respondent's warehouse constituted a breach of Section 4 of the Ontario Code. The complainant, an East Indian, was frequently subjected to "racial epithets and insults, that is, verbal harassment of a racial nature and on a regular basis. Occasionally, this verbal harassment was coupled with mild physical harassment ..." (at D/759) Professor Cumming went on to describe the working environment in the following terms:

The overall impression given by the evidence on the preponderance of evidence is that the warehouse was not just a "rough" place in which to work, with demanding physical labour for men at the lower end of society's income scale, coupled with swearing and rough language, but that the internal "pecking-order" within the warehouse placed the East Indian worker at the bottom of the informal, internal status for warehousemen. They were the butt of many of their co-workers' aggressiveness and hostility, because of their race. I do not want to generalise – undoubtedly the majority of the white workers were friendly, or at least tolerant, toward the East Indians. However, there was a solid number, if an overall relatively small minority, of white workers who would insult the East Indian workers on a racial basis.

There is no reason, in principle, of course, why harassment of a similar kind could not be directed at a group identified by gender. Such harassment would no doubt constitute a contravention of Section 4 of the Code. Thus, for example, a male supervisor who persistently and unfairly criticised the work of female employees in a humiliating way would potentially attract liability of this kind. Similarly, a man who persistently made women the butt of jokes of a demeaning kind would bring himself within the analysis of the Dhillon case. Again, however, as was the case in the sexual harassment cases of the abusive environment category, the incidents in question would have to have a degree of frequency and offensiveness which would meet the "condition of work" threshold of Section 4 of the Code. It is unnecessary to speculate further as to the kinds of taunting or teasing that might, in the context of gender bias, represent an analogue to the racial slur, but it is important to note that what distinguishes these cases of "simple harassment" from the categories of sexual harassment above is that in the former cases, the element of sexual advance is not present.

24It would be both unnecessary and unwise in the present context to engage in an extended discussion of the new provisions of the Ontario Human Rights Code dealing with harassment of various kinds based on sex, but it is of interest to note that the distinctions between the two categories of sexual harassment claims and more general harassment based on gender which appear to have emerged in Canadian case law under provisions like Section 4 of the old Code have been continued in the new legislation. See Human Rights Code, S.O. 1981, c. 53, sec. 6. Section 6(3)(b) proscribes quid pro quo sexual harassment. Section 6(3)(a) proscribes sexual solicitation or advances made, by a person with some authority, in circumstances where that person either knows or ought reasonably to know that the advance is unwelcome. This provision takes up one type of abusive environment situation and crystallises it into a clear prohibition. Section 6(2) states a general rule against harassment because of sex, and thus, presumably, embraces claims of the abusive environment variety not captured by Section 6(3)(a) together with other cases of simple harassment. "Harassment" is defined in Section 9(f) as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." Whether this test could be met by less frequent or less offensive conduct than the "term or condition of work" test of the old Code is an issue on which I offer no comment. I note, however, that one author has suggested that "the reluctance, expressed by the Board in Simms (referred to above), to impose liability in respect of a single offensive incident has been carried over into the present Code ..." See Keene, Human Rights in Ontario (1983), page 196. In the new Code provisions, then, it is only in the case of quid pro quo sexual harassment for an actual and palpably unwelcome "sexual solicitation or advance" that an isolated incident is sufficient to constitute a breach of the Code.

25In the present case, counsel for the complainant and the Commission has argued that virtually any insult or joke of an offensive nature, which in some sense rests on the biological differences between the sexes, even though the remark does not in any sense represent a sexual advance, constitutes an offence under the provisions of the old Code (see transcript, pages 657–658). It follows from the discussion of policy questions relating to abusive environment claims set out above that an interpretation of the Code giving it so broad a sweep would not reflect, in my view, sound social policy.

26In support of this expansive interpretation of the Code, counsel relied upon the following passage from the decision of Mr. Shime in the Cherie Bell case (at pages 4–6):

The evil to be remedied is the utilisation 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 pressure having to do with the mere fact that she is a woman. Where a woman's equal access is denied or when terms and conditions differ when compared to male employees, the woman is being discriminated against. 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. There is no reason why the law, which reaches into the work-place so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative psychological and mental effects where adverse and gender-directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment.

The prohibition of such conduct is not without its dangers. 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. The danger or the evil that is to be avoided is coerced or compelled social contact where the employee's refusal to participate may result in the loss of employment benefits. Such coercion or compulsion may be overt or subtle, but if any feature of employment becomes reasonably dependent on reciprocating a social relationship proffered by member of management, then the overture becomes a condition of employment and may be considered to be discriminatory.

Again, the Code ought not to be seen or perceived as inhibiting free speech. If sex cannot be discussed between supervisor and employee neither can other values such as race, colour or creed, which are contained in The Code, be discussed. Thus, differences of opinion by an employee where sexual matters are discussed may not involve a violation of The Code; it is only when the language or words may be reasonably construed to form a condition of employment that The Code provides a remedy. Thus, the frequent and persistent taunting by a supervisor of an employee because of his or her colour is a discriminatory activity under The Code and, similarly, frequent and persistent taunting of an employee by a supervisor because of his or her sex is a discriminatory activity under The Code.

However, persistent and frequent conduct is not a condition for an adverse finding under The Code because a single incident of an employee being denied a quality of employment because of sex is also a prohibited activity.

It is evidently the last paragraph in this passage on which counsel for the complainant and the Commission relies for the proposition that any gender-based insult may constitute a breach of the Code's provisions. I do not share this interpretation of Mr. Shime's comments. It must be noted that he stresses in the preceding paragraph that "it is only when the language or words may be reasonably construed to form a condition of employment that The Code provides a remedy." Surely it would be very unusual indeed to find a situation in which a single insult could be reasonably construed to create a condition of employment in the sense, presumably, that one must be prepared as an employee to endure such insults as a feature of the working environment. It may be that in the last passage, Mr. Shime was contemplating the kinds of remarks which are the subject of attention under Section 6(a) of the new Code provisions, i.e. sexual solicitation or advances, or some other extremely offensive situation from which an employee would reasonably conclude that continuing exposure to such verbal harassment would be a feature of the working environment. If this is the substance of the point made in the last paragraph, it is one with which I agree and one which offers no support for the much broader view argued for by counsel.

27In summary, then, to the extent that the case for the complainant and the Commission rests on the occurrence of offensive behaviour which does not amount to sexual harassment in the strict sense, the burden which must be discharged in order to bring the case within Section 4 is to establish that the incidents occurred with a combination of frequency and offensiveness which warrants the inference that exposure to such conduct was a discriminatory condition of employment.

III

THE FACTS

28As has already been mentioned, it has been argued on behalf of the complainant and the Commission that the respondents have breached the Code in either one or both of two ways. First, it is alleged that the respondent Wales attempted to provoke an incident or incidents which would lead to the dismissal of the complainant and that this amounted to disparate treatment on grounds of sex. Second, it was alleged that the cumulative effect of the alleged misconduct of the respondent Wales and of the complainant's foreman, Mr. Des Brady, created an abusive working environment which in itself constituted a condition of work imposed by reason of sex, and therefore a breach of Section 4 of the Code. With respect to the former allegation, the respondents reply that such tension as existed in the complainant's relationship with Mr. Wales derived from his concerns about her work attitudes and performance and not from discriminatory attitudes on his part. With respect to the second point, the respondents submit that many of the alleged incidents either did not occur or are not as offensive as might at first appear when placed in context and, moreover, that the cumulative effect of such incidents as may have occurred did not impose a "condition of work" within the meaning of Section 4 of the Code.

29Against this background, the evidence relating to these alleged contraventions of the Code and the respondents' submissions concerning them will be considered. Although it is impossible to divide the evidence neatly between those incidents relating to the allegation of disparate treatment and those relating to the allegation relating to abusive working environment, emphasis will first be placed on those relating to the first allegation, reserving to later portions of this discussion those incidents which appear to relate only to the latter.

30Considerable evidence was led with respect to the complainant's performance as an employee from November of 1974 to January of 1978, the period of time during which she was employed as a general clerk in the General Administration Department. The evidence of those who supervised her during this period presented a uniformly negative assessment of her performance as an employee and of her attitude towards her work. The complainant had a rather lengthy record of discipline of one sort or another during and after this period (Exhibit 25). Indeed, Mr. Jack Yeo, the respondent municipality's Director of Personnel, indicated that the complainant's discipline record was one of the worst he had ever seen and that although there were other employees with more unfavourable records, those employees were no longer employed by the municipality.

31Mr. Bob Rippey was the Administrative Manager for the Department during this period and was therefore the complainant's supervisor. Mr. Rippey testified that he considered the complainant's work to be "totally unacceptable." Rippey described the complainant as "an immature spoiled child" who reacted strongly to any kind of discipline and whose work performance was sufficiently unsatisfactory that he did not feel he could trust her with any task. A number of documents were filed as exhibits at the hearing which reveal a number of more specific complaints made by Mr. Rippey on a number of occasions and which indicate, as well, that the complainant was suspended twice on disciplinary grounds during this period. Mr. Rippey indicated that he felt that the complainant should be dismissed and he had so indicated to her on at least one occasion. Indeed, it was Mr. Rippey's view that he and others were about ready to dismiss the complainant at the time when she moved to the Roads Department. By way of illustrating the foregoing, the following memorandum from Mr. Rippey to the complainant, dated July 13, 1977 (Exhibit 10) is of interest:

Re Suspension

On Tuesday, July 5, 1977, a meeting was held in my office with Mr. Brian McInnis, Shop Steward, and yourself regarding your general attitude towards your work and what might be done to improve it.

Since this meeting, your work habits, attendance and attitude towards your work have worsened rather than improved whatsoever. You have been habitually late, absent from work for variant periods of time, and absent and reprimanded for being away from your work station. This, along with your negative response and attitude towards carrying out your daily responsibilities, in my mind, is enough to discharge you.

However, before taking this final step, I am hereby suspending you from work on Thursday, July 14, Friday, July 15, and Monday, July 18, 1977. I will be advising the Payroll Section to deduct these three days from your pay.

This should provide you with ample time to contemplate your position here at the Region and if you are seriously desirous of improving your work performance and attitude.

Notwithstanding the obviously serious nature of the situation, the complainant's work habits apparently did not improve and in August of 1977 a five-day suspension was imposed. Summing up his experience with the complainant, Mr. Rippey testified that she was "the most outstanding discipline problem I've encountered." Mr. Rippey also testified that he did not have problems of this kind with the other twelve to eighteen women who worked in the department during this period.

32Mr. John Kirby also testified with respect to his experience of supervising the complainant during this period. Mr. Kirby was responsible to Mr. Rippey for central filing and mail. Mr. Kirby testified with particular reference to an incident which occurred in May of 1977 on the occasion of a strike. It was Mr. Kirby's evidence that the complainant had failed to follow explicit instructions she was given as to what she should do in the event of a strike occurring. He later reported on this matter to Mr. Yeo in a memorandum dated May 18, 1977 (Exhibit 28) in which he indicated that "It is the opinion of all that Linda Watt's employment with the Region should be terminated the first day she is back to work. The problem with Linda has continued to grow and is to a point where she will not complete tasks assigned to her and deliberately tries to intimidate staff and management." In the event, this matter was not pursued by the respondent municipality inasmuch as the agreement between management and the union to settle the strike included an understanding that all disciplinary matters of this kind would not be pursued.

33Evidence concerning the complainant's work record before working in the Roads Department was led to demonstrate that the complainant was someone who had, in other contexts, demonstrated poor work habits and a reputation for being difficult to supervise, and I accept that this point has been established. As well, however, the evidence was led in an attempt to undermine the complainant's credibility. The complainant testified that with respect to her experience with Mr. Wales, she had come to "fear for her job" as a result of her treatment by him. On cross-examination, when asked if she had ever feared for her job before this, she said that she had not. She indicated that the first trouble she had had at work was with Mr. Wales. She indicated that she was an average employee during this period, that she had been willing to take orders, that her absenteeism was about average, and that she got along with Mr. Kirby. She conceded however, that she did not get along with Mr. Rippey.

34Given the nature of her work experiences during this period, it is indeed the case that her responses to questions on cross-examination did not appear to be completely candid.

35When the complainant first moved to the Roads Department as a temporary worker in January of 1978, she was supervised by Mr. Bruce High. She indicated that Mr. High had no complaints with respect to her work and, although this may indeed have been her impression, it is nonetheless true that Mr. High, for his part, testified that he had not been impressed by her work and, indeed, felt that she should not be retained by the department as an employee, as he indicated in a Probation Report dated February 21, 1978 (Exhibit 16). In explaining how it was that the complainant was, in fact, continued as an employee, Mr. High explained that he simply "did what he was told." It is of some interest that one of the complaints concerning her work, during this period, appeared to be a concern that the complainant could not carry out the heavier assignments involved in Roads Department work and it appeared to be this concern which was the principal one underlying Mr. High's lack of enthusiasm for the complainant. Although he found it necessary to issue her a letter of warning with respect to punctuality, he noted in a later probation report dated July 11, 1978 (Exhibit 18) that this aspect of her performance had improved subsequently. It was not made clear whether by the evidence of Mr. High or by the evidence of others whether the capacity for heavy work issue was resolved either by pairing the complainant with a male co-worker so that the latter could do any heavy jobs that arose in the course of the work or whether the complainant was ultimately able to establish that she was able to do all aspects of the required work. Certainly, it was Mr. Wales' evidence that the former was the case, and it is the evidence of a number of witnesses that there was some grumbling among the workforce on this issue. The most likely interpretation of the totality of the evidence, in my view, is that a requirement to do very heavy work was a very infrequent occurrence and that the respondent municipality therefore waived any concern it may have had with respect to the complainant's performance in this regard. Nonetheless, some concern or resentment remained with some of her co-workers concerning her real or imagined inability to do all of the work that others were required to do.

36In November 1978, the complainant became a permanent seasonal labourer and mower and, at about that time, Mr. Wales replaced Mr. High as the supervisor in the department. Mr. Wales was, by his own admission, a stern disciplinarian. Many witnesses, both those called by the complainant and the Commission and those called by the respondents, confirmed this view of his supervisory style. He was said to be "tough," "of the old school" and a "real barker." In the absence of a dramatic change in the complainant's work habits, it might be expected that some significant conflict might arise in her relationship with a supervisor of this kind. Although the evidence of the many co-workers who testified at this hearing suggests that the complainant was able to satisfactorily carry out the job functions of a seasonal labourer and mower there was some evidence from witnesses other than Mr. Wales that old patterns continued in the new job. Mr. High had, after all, issued a letter during the summer of 1978 with respect to lateness. Mr. Dennis Brown, whose evidence, for reasons to be considered later cannot be considered to be generally reliable, indicated that the complainant did not like following orders and, against the background of the evidence of other witnesses which indicates that she harboured a strong resentment of Mr. Wales' style of supervision, this evidence has a ring of truth to it.

37Mr. Wales testified that his first encounter with the complainant was a friendly one. Having known her father some years before, Mr. Wales had met the complainant when she was twelve or thirteen years old and, drawing on this connection, struck up a friendly conversation with her. From then on, things went downhill. He found the complainant quite unresponsive and hostile and, in this respect, very unlike the only other female labourer in the roads crew, Maureen Marshall.

38From the complainant's perspective, the first point of real difficulty with Mr. Wales arose on April 15,1979, when Mr. Wales brought her into a meeting with himself and a trade union steward, Mr. Gupil. Both the complainant and the respondent Wales are consistent in their evidence to the general effect that on this occasion Mr. Wales advised the complainant that he was concerned that she was not pulling her weight as a member of the crew, and accordingly he was transferring her to the Niagara-on-the-Lake patrol, No. 22, and giving her a chance to improve her work. If her work did improve, Wales indicated, she would be allowed to return to patrol 23 which he assumed to be her preferred assignment. In the event, the complainant was so transferred and, as she performed satisfactorily in the Niagara-on-the-Lake patrol for two weeks, she was returned to patrol 23.

39There was some conflict in the evidence with respect to the reason for this move. Mr. Jim Taylor, the complainant's supervisor at Niagara-on-the-Lake, indicated that he thought she was being required to move because of a relationship that had developed with a co-worker on patrol 23. Shortly after she began work, the complainant began to have an affair with the aforementioned Dennis Brown, a married man with whom the complainant regularly shared work assignments. Mr. Wales was well aware of the situation and, as the complainant conceded, there was one occasion on which difficulty in contacting the two workers on the radio was encountered. Mr. Wales indicated that although this situation was "a laughing stock" in the yard, he did not transfer the complainant to Niagara-on-the-Lake as an attempt to bring this relationship to an end. Mr. Taylor's evidence was that "too much togetherness on the job" was one of the reasons for the transfer, although there were other concerns about the complainant's work habits.

40On balance, I am satisfied that the personal relationship with Mr. Brown was not a factor in Mr. Wales' reasoning concerning the transfer. In his testimony, Mr. Wales appeared to be a rather blunt man and if this were the real reason for the transfer, it would be surprising if he would not mention this fact to the complainant. Her evidence did not suggest that any comment of this kind was made. If the transfer was meant as some sort of threat to bring about a termination of the relationship, it would hardly be effective if this fact was not mentioned to the complainant by Mr. Wales. Moreover, a two-week transfer would not appear to be much of a solution to the problem if Mr. Wales had indeed perceived the situation to be a problem and was attempting to solve it. It seems likely, then, that Mr. Taylor either misunderstood something that was said in the context of a conversation about the transfer or simply has failed to remember these events accurately. It was Mr. Wales' evidence that he did not have a conversation with Mr. Taylor with respect to the transfer. It may well be, then, that a third party who misunderstood the situation made a statement which had the effect of misleading Mr. Taylor.

41The evidence of Mr. Wales that the transfer was motivated by a concern about "productivity" is undermined to some extent by the evidence of the foreman, Mr. Des Brady, who probably had more direct contact with the complainant and who testified that he felt her work was no worse than that of others, and that he had not complained to Mr. Wales about so-called productivity problems. It seems very likely, however, that Wales' views of the complainant's performance rested on his own observation. In his evidence, he did not suggest that he came to his decision because of complaints made by Brady or others. His assessment of the complainant's work seemed to be based on his own personal contact with her. He testified that he had overlooked several incidents that could have resulted in discipline. The breakdown in responsibilities between Brady and Wales was not set forth in the evidence, but the accounts of various incidents appear to suggest that Wales would have had considerable personal contact with employees, notwithstanding the fact that their foreman, in this case Brady, would be their immediate superior. This, coupled with the fact that Wales appears to have been a more demanding supervisor than Brady, suggests that it is quite possible, at least, that Wales would have concerns about the complainant's performance that would not have been brought to his attention by Brady.

42The allegation being made against the respondents with respect to this transfer is, of course, that it was motivated by gender bias rather than a concern on the part of Mr. Wales with respect to the complainant's performance. Support for this view was drawn from some remarks which were attributed to him by the complainant as being made during the meeting of April 15th. It was the complainant's evidence, and this was an allegation made in the complaint (Exhibit 2), that the respondent told her "I do not want or approve of women working in my yard." The complainant alleged that Wales also said, on this occasion, that she had "lost all her femininity" working in the yard. The complainant further testified that she was "shocked" by these comments.

43Mr. Wales explains the second of the two comments on the basis that Linda's use of obscene language on the job had, in his view, detracted from her femininity. Indeed, it was his evidence that what he said to the complainant on this occasion was that the complainant's language was disgraceful and that she had "detracted from her femininity" with her language in the yard.

44There is no doubt but that the complainant used profane language with some frequency on the job. Mr. Taylor, a witness whose evidence was generally supportive of the complainant, indicated that the complainant had "a notorious tongue." Regular use of profane language was conceded by the complainant. On the other hand, it is also quite clearly established that the objections of Mr. Wales to this conduct rested on sexist attitudes. He felt that foul language was perfectly appropriate for men in these circumstances but not for women. Indeed, Mr. Wales' attitude towards the employment of women in these work environments was patently sexist in nature. It was his view, as he explained in his testimony, that he "didn't think actually that women were ever put on this earth to do the work of men. That was my, just my way of being brought up, et cetera." Mr. Wales went on to add an element of bigotry to his views by suggesting that this might not be as true of women "from one of the foreign countries where they are brought up on the farm and everything else, consequently their muscles develop, their leg muscles develop, they become where they are stronger than men." (Transcript, page 370) Mr. Wales' views, however naturally they may have come to him as a result of his cultural environment, are virtually a caricature of the sorts of attitudes which led to the social injustice which the Code attempts to remedy. It is not surprising, however, that a man of Mr. Wales' views would look upon the use of profanity by a young woman in the workplace as something "detracting from her femininity" and, however much these views might reflect a "double standard" that many would find unacceptable, the holding of such a view, surely, is not a very startling phenomenon. Thus, if Mr. Wales did make clear to the complainant that his concern resulted from her use of profane language, this would not be an incident which, in my view, would reasonably "shock" a person in the complainant's position.

45The "do not want or approve" remark appears to be more troublesome. It is of considerable interest, however, that a considerably more palatable version of this remark is reproduced in notes of this conversation prepared by the complainant (Exhibit 9). The complainant there recorded that Mr. Wales said that "I have bent over backwards for Maureen and you even though I do not want or approve of women working in my yard." Although Mr. Wales denies making this comment, it is so consistent with the attitudes expressed by him in his evidence and, when placed in its entire context, so surprising a statement for the complainant to fabricate, that I am inclined to the view that Mr. Wales did make a comment of this kind. I am also of the view, however, that the comment is essentially innocuous in terms of the establishment of a contravention of Section 4 of the Ontario Code. On the complainant's version of this statement, Mr. Wales had essentially said that notwithstanding his attitudes on the question of permitting women to work in the Roads Department, he had attempted to treat them fairly, indeed more than fairly. This statement would be quite damaging if the complainant were attempting to prove that disparate treatment of some kind could be explained only by the existence of sexist attitudes and this statement is therefore to be relied upon as some evidence of the holding of such attitudes by Mr. Wales. The holding of such attitudes is, however, conceded. The important question, then, becomes whether Mr. Wales acted on such attitudes and, in this respect, this statement is not, when considered in its entirety, a concession on the part of Mr. Wales that he was in fact acting on the basis of such attitudes. Indeed, it is a strong statement to the contrary.

46In short, the statements made by Mr. Wales on April 15th, whatever impact they may have had on the complainant, are not, in my view, a basis for concluding that the transfer of work assignments made on that occasion was motivated by a discriminatory attitude. Indeed, when considered against the background totality of the evidence concerning the complainant's performance both prior to and after joining the road crew workforce, the most likely explanation for Mr. Wales' decision to transfer the complainant is that offered by him in his evidence, that is that he was concerned about the complainant's work performance. The absence of similar treatment being meted out to Ms. Marshall is of some relevance, but more importantly, the evident feistiness of the complainant's attitude and her apparently cavalier attitude to such matters as safety rules is something which would likely be especially troubling to a zealous supervisor such as Mr. Wales.

47The complainant's evidence concerning this episode is not completely satisfactory. As noted, in her testimony, the complainant did not refer to the prefratory comment, "I have bent over backwards for Maureen and you" which places the rest of his statement in a very different light than that created by quoting the rest of his statement in isolation. The apparent willingness of the complainant to distort the facts to suit her own purposes detracts from her credibility as a witness. When confronted with this point on cross-examination, the complainant's explanation was that she did not think that Mr. Wales had, in fact, bent over backwards to be helpful to her and accordingly, she felt she was under no obligation to report the rest of his statement. A more candid witness would report the whole statement and add the qualification subsequently.

48The complainant's evidence with respect to the psychological impact of her relationship with Mr. Wales and, in particular the effect of the April 15th incident, is also less than satisfactory. The complainant testified that within a few weeks of this incident, she became very depressed, subject to severe mood changes, and began to live, almost like a recluse, afraid to go outside. The complainant indicated that she could not sleep at night, had low self-esteem and suffered from headaches. It was her evidence that she remained in this state for approximately one-and-a-half years, first seeking medical treatment for her condition in June of 1979. In cross-examination, counsel for the respondents attempted to demonstrate that other troubling events might have contributed to this condition and asked whether she had been upset by other potentially troubling events such as the breakup of her first marriage and the various stages of her relationship with Mr. Brown. It was the complainant's evidence that neither of these matters, nor any others probed by counsel on cross-examination, caused her significant concern. The evidence of Ms. Marshall, however, who knew the complainant during this period, was that the divorce had indeed been a difficult time for the complainant. She agreed that the period was difficult and upsetting for the complainant, with tears shed, and that this period of difficulty extended over some months. Ms. Marshall also testified that the breakup of the affair with Mr. Brown was also upsetting for the complainant. It would appear that the complainant minimised the psychological impact of these other events so as to avoid undermining her claim that her dealings with Mr. Wales had been the exclusive cause of her psychological stress during 1979 and 1980. I am satisfied that her evidence on this question is therefore not sufficiently reliable to find a causal link between her contact with Mr. Wales and whatever emotional distress she may have endured during this period.

49A potentially more troubling episode occurred in late July of 1979, when the complainant and Mr. John Burns were working together on St. David's Road in Thorold. The complainant explained that "one of the trucks" offered to take them for coffee. Subsequent evidence indicated that the anonymous truck so artfully referred to was, in fact, Dennis Brown. It was apparently improper for Burns and Watt to leave their mowing machines in this fashion. When the trio returned, Wales and Brady met them and instructed the two that they should not leave their tractors. The complainant's evidence was that Mr. Burns advised her the next day that Mr. Wales had approached him and told him that he could ignore what had been said, that "it was Linda I wanted to get." Mr. Wales offers a very different version of this episode in his evidence. He explained that Mr. Brown's job at that point was in Niagara Falls and that he had no right to be in Thorold. He indicated that he then spoke to each of the three workers individually and reprimanded them. He testified that it was his practice to offer such reprimands privately rather than in a group setting. With respect to Mr. Burns, Wales indicated that he advised Burns that his work had been otherwise satisfactory to date, and suggested to him, "Try to watch the company you're keeping."

50The Wales version of this episode does appear plausible. Elsewhere in his testimony, Mr. Wales, after indicating a reluctance to answer the question, identified the complainant, Mr. Brown, and Mr. Steve MacNamara as the three most serious troublemakers on his crew. The lunch time episode had obviously been initiated by Mr. Brown. It would not be surprising if Mr. Wales would counsel Burns to resist participating in activities of this kind with the complainant and Mr. Brown.

51It would have been most interesting, of course, to have evidence of Mr. Burns' recollection of this episode. Curiously, although Mr. Burns was called as a witness on behalf of the complainant, counsel did not examine him with respect to the statement attributed to Mr. Wales by the complainant. Nor was he examined on the question of what he might have reported to the complainant with respect to his conversation with Wales. This failure to lead evidence on the point leads me to the conclusion that the evidence. of Mr. Burns would probably not have been helpful. This, together with the plausibility of the version of the episode put forward by Mr. Wales, leads me to prefer the evidence of Mr. Wales over the hearsay evidence of the complainant on this point. I find, therefore, that Mr. Wales did not, on this occasion, indicate that he was "out to get" the complainant.

52Another incident relied on by the complainant in support of the theory that Mr. Wales and Mr. Brady were conspiring together to dismiss her unfairly is the alleged promotion by Mr. Brady of the idea that a petition should be mounted to seek the termination of the complainant's employment. The evidence against Mr. Brady on this point was offered by Mr. Steve MacNamara who, in his evidence, offered two versions of this episode, the latter of the two being consistent with the version of the incident offered in Mr. Brady's own testimony. Mr. MacNamara's evidence was as follows (Transcript pages 205–206):

Q: With respect to Mr. Brady, do you recall any comments about Linda?

A: Yes, he said he wanted to put up a petition.

Q: What was the purpose of the petition?

A: Well, some people didn't want to work with her, so he was having problems, like he would put somebody with her and then they would come back and say, "I don't want to work with her," all this, you know, we had set up for that day's work.

Q: So he advised you about the petition?

A: No, it was just kidding, I think, because it was just hearsay for me to him.

Q: What did he tell you about the petition?

A: He just said, you know, if you guys don't want to work with her, put up a petition, just jokingly to me.

Q: Did you relate that to anyone else?

A: To Linda.

Q: To anyone else?

A: No.

Q: When you related it to Linda, did you tell her it was said in a joking manner?

A: No, I didn't say it was joking.

Obviously, it is quite a different thing to say that Mr. Brady "said he wanted to put up a petition" rather than to indicate that in response to complaints from people who did not want to work with Linda he said "If you guys don't want to work with her, put up a petition" and that the remark was made in a joking manner. The first version suggests that Mr. Brady spearheaded a drive to get up a petition to have Ms. Watt dismissed. The second suggests that in responding to the pressure of his employees, he said that they should, in effect, put their complaints in writing.

53Mr. Brady's evidence is consistent with this second version put forward by Mr. MacNamara. It was Mr. Brady's evidence that there was a good deal of grumbling from employees who did not want to work with the complainant. Mr. Brady told such employees that they shouldn't keep "moaning" to him but rather should put it in writing. That, he said, is "the proper procedure." As far as Mr. Brady knew, no such complaints ever surfaced. In short, it was Mr. Brady's evidence that he was simply responding in the normal way to complaints made by employees and not in any sense attempting to provoke them to take action which would lead to a dismissal of the complainant.

54Mr. Wales also offered testimony with respect to this incident which was consistent with that of Mr. Brady. A number of employees complained that Ms. Watt was not carrying her share of the workload. Moreover, the "young marrieds" did not want to work with her for fear that doing so "could cause problems at home." With respect to the latter point, it was Mr. Wales' evidence that he did not view this to be a legitimate complaint. Mr. Wales also indicated that in response to complaints from those who did not wish to work with Linda, he said something to the general effect that there was nothing he could do about it unless something was put into writing.

55I am satisfied that neither Mr. Wales nor Mr. Brady, on their own initiative, attempted to promote the idea of gathering up a petition which could be used to seek the complainant's dismissal. Rather, on closer examination, the comments of Wales and Brady along these lines indicate that they were not prepared to do anything about these complaints unless the individuals concerned were prepared to make their complaints in writing. Inasmuch as no written complaints ever surfaced, it may be reasonable to infer that their remarks were not taken by complainers to be an encouragement to do so. It may be, of course, that some other type of response might have represented a more astute attempt to defuse the situation. The more important point for present purposes, however, is that this episode does not offer convincing evidence that Mr. Wales or Mr. Brady were, in effect, conducting a campaign to seek the dismissal of the complainant. Again, one notes that there was no suggestion of either Mr. Wales or Mr. Brady attempting to generate a written complaint concerning the performance of Ms. Marshall nor was there evidence that employees were refusing to work with her.

56One further item of evidence appears to be supportive of the suggestion that Wales and/or Brady were attempting to make life difficult for the complainant. It was Ms. Marshall's evidence that the complainant was not treated in an evenhanded fashion with respect to work assignments. If there was a demeaning task available, she suggested, the complainant would be assigned to it. Curiously, however, the complainant herself did not suggest in her evidence that this was a problem. Moreover, virtually all of the witnesses who testified, whether on behalf of the complainant or on behalf of the respondents, indicated that there was no unfairness in the making of work assignments. I am satisfied, therefore, that there was no factual substance to the suggestion made by Ms. Marshall.

57The remainder of the evidence led against the respondents falls into two categories. First, there were a number of remarks attributed to Mr. Wales in conversation with employees other than the complainant which suggested either that he did not think very highly of the complainant or that he did not like the idea of women being employed in the road crew. Secondly, there were three incidents in which either Mr. Wales or Mr. Brady made comments to the complainant herself which were thought to be either highly offensive by her or, in one case, tacitly threatening her with dismissal.

58Turning to the first category – remarks made to third parties – Ms. Marshall testified that Mr. Wales said to her that sleeping with the complainant would be like "sleeping with a lumberjack." Mr. Wales concedes that he made a comment of this kind, though he adds that the explanation for it was that he felt that the complainant's use of foul language was appropriate for a lumber camp. Further, Mr. Burns testified that Mr. Wales said to him that he would like it better if the complainant wasn't an employee. Mr. Wales denied making this statement but the sentiment is so consistent with views expressed by him in his own evidence and, inasmuch as I have no reason to question the credibility of Mr. Burns, I find that a comment of this kind was made by Wales to him. Mr. MacNamara testified that Mr. Wales had said that he thought that the complainant had lost her femininity, working in the yard. Fred Maddison, another co-worker, testified that Mr. Wales had said on one occasion to Mr. Brady that women were only good for "bed-warmers" and that he didn't want any woman [in] the yard. Again, Wales denies making these statements to MacNarama and Brady but, for the reasons suggested above in discussing the similar evidence of Mr. Burns, I am satisfied that some, if not all, of these comments were made by Mr. Wales.

59The important question which then arises, however, is what legal significance these remarks might have. First, they might be relevant if it were necessary to find evidence to support the proposition that Mr. Wales was a man who held sexist views on the question of the employment of women in the roads crew. This has been established with abundant clarity in his own evidence on this point and, from this point of view, evidence of these further remarks is superfluous. These remarks might also be material if it were necessary to establish that Mr. Wales had, through remarks of this kind, encouraged the creation of a work environment in which the complainant's co-workers subjected her to harassment of some kind. On the contrary, however, the evidence of the complainant does not suggest that Mr. Burns, Mr. MacNamara or Mr. Maddison were anything other than perfectly satisfactory co-workers. Indeed, they appear to have all had quite positive attitudes towards her work. Thus, this is not a case in which the negative attitudes of co-workers created a work environment which constituted a breach of Section 4 of the Code, making it necessary, therefore, to consider whether Mr. Wales, as supervisor, tolerated or actually encouraged the creation of such an environment. Mr. Wales' remarks to these third parties were obviously extremely unwise in the sense that they might well have created a basis for liability if the employees in question had taken them as an invitation to harass the complainant and/or other female employees. Such, however, was not the case here.

60These remarks to third parties might also be relevant if they appeared to represent an attempt on the part of Mr. Wales to create a psychologically difficult working environment for the complainant because he expected that the substance of these remarks would be communicated to her by Messrs. Burns, MacNamara and Maddison. This does not, however, appear at all likely in the circumstances of this case. Indeed, with respect to the remarks concerning "loss of femininity," it is established that Mr. Wales himself made this remark to the complainant on another occasion. With respect to the communication of other remarks, it was not suggested by counsel for the complainant and the Commission that they were made by Mr. Wales in the expectation that they would be so communicated and, indeed, one expects that Mr. Wales might be surprised that this did occur.

61There are, then, a number of ways in which sexist remarks made to third parties could become relevant in the context of a Section 4 claim. It is my view, however, that in the circumstances of the present case, they are not of assistance to the complainant and the Commission.

62Turning to the second category of incidents to be considered – remarks made by Wales and Brady directly to the complainant – two of the incidents concerning Watt were allegedly intended as jocular comments which the complainant found offensive, and the third incident is one in which Mr. Wales advised the complainant that she should "worry about her job." The latter incident was, for obvious reasons, relied on as support for the proposition that Mr. Wales was engaged in a course of action which was designed to lead the complainant into behaving in such a way that she could be dismissed, but it was also relied on as some evidence of the creation of an abusive working environment.

63On the complainant's own evidence, this incident arose in circumstances where she had indicated that she was anxious that she be picked up by Wales and Brady so as to be back at the yard by quitting time as she was about to begin her holiday. Indeed, on cross-examination, the complainant conceded that she was displeased about the prospect of being late. It is also apparent that the complainant and Mr. Brady were not on good terms at this point and, according to the complainant, Mr. Wales asked her whether she took "miserable pills" to be so miserable. The complainant testified that she responded to this by saying that Mr. Wales should take a look in a mirror, that he was the one suffering from symptoms of this kind. It was in this context, against the background of the complainant's expressed concern about getting back to the yard by quitting time, that Mr. Wales said that she should "worry about her job." As counsel for the respondents argued, it is obvious that this comment can be interpreted as one suggesting, in effect, that the complainant should spend more time worrying about the proper performance of her job than about getting back to the yard at quitting time. Indeed, in my view it is more reasonable to interpret the remark in this way rather than to suggest it represents some sort of random or idle threat of unjustified dismissal. Accordingly, the remark is not one which lends support either to the theory that Mr. Wales was attempting to provoke the complainant or to the view that he was, in making this remark, creating an abusive working environment of a kind which would contravene Section 4 of the Code.

64The incident is a revealing one, inasmuch as it indicates, on the basis of the complainant's own evidence, something of the flavour of the relationship between the complainant and Mr. Wales. It would not be surprising if a man of Mr. Wales' generation and general approach to supervision found the complainant's attitude toward her superiors, more particularly himself, to be unsatisfactory.

65The most offensive of the two allegedly jocular remarks came from Mr. Brady. At approximately 8:15 one morning, a small group, including at least the complainant, Ms. Marshall and Mr. Brown, were sitting at a picnic table in the yard awaiting work orders. There was a very unpleasant odour in the yard as someone had apparently left a dead animal in one of the trucks. The complainant asked what the cause of the aroma was and Mr. Brady, who was nearby, is alleged by the complainant to have come over to her and pulled apart her legs, insinuating that she was the source of the unpleasant odour. It was Mr. Brady's evidence that although he did make a remark in general terms about the odour, he did not touch the complainant in the fashion alleged. A good deal of evidence in these proceedings was led on this particular point and I am satisfied that at the very least, Mr. Brady made a remark which specifically referred to the complainant in this context or, more probably, did in some fashion touch the complainant in such a way as to indicate, albeit in a joking manner, that the complainant was the source of the odour.

66The final incident relied on by the complainant involved a joke made by Mr. Wales concerning what he referred to as his "passion pills." Mr. Wales has a history of heart problems. Prior to his return to the job of supervisor in the Thorold yard in November of 1978, he had been on long-term disability leave for three years. Mr. Wales was required to take medication in the form of pills which he carried in a somewhat unusual pillbox, coated in silver, and emblazoned with the masks of comedy and tragedy. On the morning in question, Mr. Wales was out on what he described as "patrol" in the Niagara Falls area. He noticed that the two tractors being used by the complainant and Mr. Burns were parked and therefore went over to see what the problem was. The problem had in fact been solved and a short exchange with the complainant followed. Mr. Wales reached for a cigarette and, in so doing, brought out his pillbox. The complainant asked to see it and Mr. Wales permitted her to do so. Pointing to one of the pills in the box he said something like "Watch out for that one, that's a passion pill, if you take it you'll run into the woods and take your pants off." Although it was the complainant's evidence that she "just walked away" from Mr. Wales, his evidence was that she laughed with him about this joke and that he then explained what the pills really were.

67Given the heavy reliance placed by counsel for the complainant and the Commission on the sexual harassment cases, it is important to note that neither of these incidents represent a sexual advance in any sense and the complainant does, in fact, concede that no such advances were made by either Mr. Wales or Mr. Brady on these or any other occasions. The remarks in both cases may nonetheless be considered quite offensive, of course, especially that of Mr. Brady. The odour joke is obviously a joke at the expense of the complainant in a way in which the passion pills joke is not. It is obviously not the point of the passion pills joke that the complainant was especially vulnerable to such medication, but it is understandable, if it was the case, that the complainant would find both remarks to be quite offensive.

68Given the heavy reliance placed on these two incidents with respect to the abusive working environment aspect of the complainant's case, it is important to note that the complainant concedes there were no other incidents of this kind in her dealings with Mr. Wales and Mr. Brady. Moreover, it should be noted that no complaint was made at any time with respect to these incidents or any of the many other incidents which form the subject matter of the evidence at these proceedings, by the complainant either to management or to the Union. This is not to suggest that such complaints must always be made if an abusive working environment claim is to be established, but it is clear that this is at least not a case in which a supervisor, Mr. Wales, failed to respond to an overture from the complainant to desist from making remarks which she found to be offensive.

69There were one or two other minor and inconsequential incidents referred to in the complainant's evidence which appeared to be explained away by the respondent's evidence and upon which counsel did not place much reliance in argument. Thus, the complainant indicated that she felt she was harassed by being telephoned at home when she had booked off work ill. This was said to be a standard, or at least frequent, practice and not unusual in any sense, and I am satisfied that this was indeed the case.

IV

SUMMARY AND ANALYSIS

70It follows from the foregoing analysis that I am satisfied that the respondent did not, through the actions of Mr. Wales and/or Mr. Brady, engage in a course of conduct which was designed to either force the complainant to resign or provoke an incident in which she would behave in such a fashion that dismissal would be warranted. As well, I am satisfied that the two-week transfer from one patrol to the other – a transfer which did not, as the complainant well knew, amount to discipline in any formal sense – was motivated by a concern with the complainant's work performance rather than gender bias. It may well be that Mr. Wales' concerns about "performance" were affected, either wittingly or unwittingly, by the personality conflict that evidently arose between himself and the complainant. The totality of the evidence concerning the complainant's work performance indicates that she was resentful of authority in a general way but particularly resentful of the supervision of Mr. Wales. There was considerable evidence led at the hearing to suggest that she was very angry at Mr. Wales. More than one witness indicated that she threatened to "get the old bastard one way or another" and, although the complainant denies making this statement, I am satisfied that she made a number of statements indicating a high level of hostility toward him and, on the balance of probabilities, made this specific remark as well. It is evident from the totality of evidence concerning exchanges between the complainant and Mr. Wales that she manifested this attitude of hostility towards him in a number of ways. It would be surprising if his judgment of her work performance were not affected, to some degree, by this tension.

71There was, however, evidence with respect to highly problematic work performance during the 1974–1978 period and some evidence of a problematic performance on the road crew which offers support for the proposition that Mr. Wales may indeed have been exclusively concerned with performance problems of a non-attitudinal nature. Concerns about lateness and. absenteeism and failure to abide by safety rules were mentioned in the evidence. Mr. Wales indicated, without elaborating on the point, that he was concerned about frequent breakdowns of the machinery being utilised by the complainant. Whether the motivation for the transfer was brought about exclusively by concerns about performance of this kind or concerns of this kind mixed with concerns about the complainant's attitude to her work or to Wales himself, I am satisfied that it was caused by considerations such as these rather than by sexist bias.

72There is no doubt, of course, that Mr. Wales demonstrated with great clarity that he holds sexist attitudes. Moreover, a number of the comments he made to his employees, including the complainant, gives some evidence of this and it is accordingly not surprising that suspicions were raised with respect to his true motivations in his dealings with the complainant. I am satisfied, however, on a careful review of all of the incidents which formed the subject matter of this inquiry, that Mr. Wales did in fact not act on the basis of these attitudes in his discharge of his responsibilities as a supervisor. Openly admitting that he did not think "the yard" was a proper place for women to work, Mr. Wales went on to testify that if women were assigned to the yard, however, he had no choice but to "go along with it" and "do his job properly." In reaching the conclusions that Mr. Wales did genuinely attempt to do so, it is of some interest that his relations with Ms. Marshall appear to have been quite cordial and that he had no complaints about her work whatsoever. Nor did Ms. Marshall offer evidence of verbal or other harassment directed at herself by either Wales or Brady. There appears to be no explanation – other than performance or attitudinal problems of the complainant – as to why Mr. Wales would treat the complainant differently from Ms. Marshall.

73There remains the question of whether the various insults or jokes made by Mr. Wales and Mr. Brady created an abusive working environment which, though apparently targetted only at the complainant Watt, constituted a "term or condition" or employment imposed on the employee of one gender in contravention of Section 4 of the Ontario Code. As explained in Section 11 of this decision, it is my view that if a breach of Section 4 is to be established, insults or taunting of this kind must, through a combination of offensiveness and frequency, reach a level at which the victimised employee reasonably believes that continued exposure to such conduct is a condition of the job and it must also be the case, of course, that other employees are not subject to the same condition. In my view, the evidence in the present case fails both branches of this test.

74First, it is not at all clear that offensive remarks or jokes were reserved for the complainant. Considerable evidence was led with respect to the general roughness and profanity of the working environment. Indeed, Mr. Wales indicated that he felt it was easier to deal with some of the male troublemakers because he could speak more roughly to them but felt he could not use profane language in dealing with female employees. Counsel for the complainant and the Commission argued that the two episodes concerning the offensive odour and the "passion pills" were obviously discriminatory and they were dependent on gender for their humour, however questionable the "humour" may have been, and that it was therefore clearly the case that the same "jokes," as it were, could not be made about male employees. I am not at all satisfied, however, that male employees were not often the butt of rather similar humour. Although there was not much explicit evidence on this point, the general evidence concerning the workplace environment strongly suggests that this was so.

75Assuming, however, for the sake of thoroughness, that there was no analogous taunting of male employees, it is not my view that the frequency and offensiveness of the remarks of Mr. Wales and Mr. Brady meet the threshold necessary for contravention of Section 4. Some of the remarks lose some of their offensiveness when placed in the context of Mr. Wales' concerns about the complainant's use of profane language. The two "jokes" in question are, of course, quite offensive but they do appear to be isolated incidents rather than part of a continuing pattern of verbal harassment through the use of profane humour. I have no doubt, however, that conduct of this kind could pass the threshold of the Section 4 test if it occurred with significantly greater frequency or if it were continued in the face of objections articulated by someone in the complainant's position. On the present facts, however, it is my view that the test has not been met and no contravention of Section 4 of the Code has occurred.

V

CONCLUSION

76It follows from the foregoing analysis that the complainant and the Commission have not established that a breach of the Code has occurred. The allegation that the respondent Municipality, through the actions of Mr. Alex Wales, was attempting to force the complainant to resign or to provoke an incident which would give rise to a dismissal have not been substantiated, nor has the allegation that various remarks of Mr. Wales to Mr. Brady created an abusive working environment amounting to a "term or condition" of employment within the meaning of Section 4 of the Ontario Code. Accordingly, the complaint is hereby dismissed.