Carolyn Bishop v. Scott Hardy, 1986 CanLII 6520

Bishop v. Hardy

1986-09-19

Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE

Carolyn Bishop Complainant

v.

Scott Hardy Respondent

Date of Complaint: November, 1983

Date of Decision: September 19, 1986

Place: Kingston, Ontario

Before: Daniel A. Soberman

Appearances by: M. Catherine Osborne, Counsel for Carolyn Bishop and the Ontario Human Rights Commission Scott Hardy, appearing for himself

SEXUAL HARASSMENT — sexual advances by employer — EVIDENCE — character witness

Summary: The Board of Inquiry finds that Scott Hardy sexually harassed Carolyn Bishop when he terminated her employment because of her refusal to have intercourse with him.

Carolyn Bishop was hired by Scott Hardy to work in his furniture refinishing business. The Board accepts her evidence that she was fired by him after five weeks of employment when she refused to have sexual intercourse with him.

After Mr. Hardy introduced character witnesses on his own behalf, the complainant introduced evidence that Mr. Hardy had been convicted of rape on two occasions. The Board accepts this as evidence that Mr. Hardy is a person more likely than average to have acted in the manner alleged by the complainant.

The Board orders Hardy to pay Bishop $395 in compensation for wages she lost due to the discrimination and $1500 in general damages.

The Facts

1This hearing was first convened briefly on May 13, 1986. The respondent, Scott Hardy, appeared without counsel, and at the time I expressed concern about his lack of legal advice in a matter where it seemed that there would be a dispute about the facts in a serious matter. I urged Mr. Hardy to obtain counsel, but he refused, saying that he could not afford to pay. When the hearing was reconvened on July 7, 1986, Mr. Hardy was still without counsel.

2The respondent is the owner of a furniture refinishing business operating under the name of Scott Anthony's. One day in September 1983, on his way into Kingston in his van, he stopped to give a lift to a young woman who was hitch-hiking. The woman was the complainant, Carolyn Bishop, then 19 years old. Mr. Hardy asked her why she was going downtown and she replied that she was looking for a job. Mr. Hardy said that he had a position available in his workshop and gave her his business card, suggesting that she follow it up if she was interested.

3Ms. Bishop went for an interview soon after, and was hired as a trainee at $4.00 per hour, on a part-time basis; she started work on October 1, 1983. She performed a variety of tasks, such as stripping furniture, cutting fabric, stapling and sewing. According to Ms. Bishop, she was told that she was doing a good job and did not receive any criticism. Sometimes after work, they would have a drink together on the business premises. As she usually worked until 10 p.m., Mr. Hardy normally drove her home.

4The facts in dispute that follow, were presented by Ms. Bishop under oath, with some questions asked by Mr. Hardy by way of cross-examination.

5On November 6, 1983, five weeks or so after she had begun working for Mr. Hardy, they went to his office where he offered her a drink. Mr. Hardy said that he would like to have a person in the shop whom he could trust and who would make sure that the work was getting done. She stated that Mr. Hardy then said:

He'd really have to get to know this person . . . inside and out, go to bed with them sort of thing, and I could be that person if I wanted to be.

When Ms. Bishop said no, she did not want that, he started to compare her work with that of another woman, saying their work was the same, but since the other worker had four children he would keep her on the job. Again, according to Ms. Bishop, Mr. Hardy then added:

If I still wanted the job I could go to bed with him and I could still keep my job.

She said no again, and asked whether she was "officially fired". He said that she was, but called to her as she left that if she changed her mind he would always be there.

6Ms. Bishop went back to the apartment that she shared with Marlene Veno and told her what had happened.

7Ms. Veno gave evidence that she had met Mr. Hardy in September 1983, before Ms. Bishop had been hired, and had also met him on several occasions when she visited Ms. Bishop at the shop. She stated that she heard Mr. Hardy praise Ms. Bishop's work.

8Miss Veno confirmed that Ms. Bishop returned to the apartment and described what had happened. In response to the question, what condition Ms. Bishop was in she stated:

Very upset . . . we'd just got an apartment, she was going to school, and things were going really well, and it meant a lot to her to move out of home and get her own place. So she needed the job. She was very upset.

Miss Veno then suggested that Ms. Bishop seek public assistance. On November 16, 1983, Ms. Bishop went to the Kingston Township Social Services Department. Elizabeth Stewartt, who is employed in the Department, interviewed Ms. Bishop and processed her application.

9Mrs. Stewartt, in her testimony, confirmed that Ms. Bishop applied for assistance to pay her rent and living expenses, because she had lost her job. Ms. Bishop told her that she had been sexually harassed. Mrs. Stewartt added:

I did question her about it to make sure she knew what sexual harassment was, and I was quite satisfied at the time to accept her application.

10Later in November — the exact date was not submitted to the Board — Ms. Bishop made a complaint to the local Ontario Human Rights Officer, Mr. Joseph Polley.

11The above is a full account of the case made on behalf of the complainant and the Commission. Although counsel wished to bring forward similar fact evidence, the only evidence of this kind available to the complainant was itself hearsay. In my view, hearsay evidence of similar fact evidence, the latter raising difficult questions even when it is direct, ought not to be admissible. Accordingly, I refused to allow it to be brought before the Board, and it played no role whatever in this decision.

12The respondent's evidence to counter the story of the complainant was very limited:

13Ms. Kathy Brownlee, a friend of Mr. Hardy who has known him five years, testified that at a party — no time was mentioned when the party took place — she heard Carolyn Bishop say, "I'm going to take him [Scott Hardy] for every cent I can get." We do not know the circumstances, that is, whether her words were in response to a statement by another person, or how long after the alleged harassment took place, that Ms. Bishop was supposed to have said them. In any event, the witness was vague about the surrounding facts, and her account is of little if any weight in attacking the credibility of the complainant.

14Robert Travis, Mr. Hardy's brother-in-law, gave evidence that Mrs. Travis (his wife), Mr. Hardy and himself, had decided that Ms. Bishop should be let go shortly before the final conversation between Ms. Bishop and Mr. Hardy. Mr. Travis stated they had decided that the complainant's work was inadequate. However, his memory with respect to his knowledge of Ms. Bishop's work and general conduct was vague and unhelpful. Mr. Travis had been working for the respondent for only two weeks himself, and his wife had arrived just two days earlier. Moreover, after the discussion about dismissing Ms. Bishop, Mr. Travis left to make a delivery by truck and was not present when the complainant was dismissed. He stated that on his return fifteen minutes later she was "standing in the street hollering". However, when asked what she was saying, he replied:

I couldn't make it out, sir, because I was driving the truck, I had the radio on. I could see her mouth moving . . .

15There was no other response submitted on behalf of the respondent with respect to the incident in question. Mr. Hardy then decided to call "character witnesses" on his behalf, the first being a woman employee who has worked for the respondent for about one year. She stated that she had no complaints about her treatment by the respondent.

16Mr. Hardy then called as a witness Karen Frizzel, who has known him as a friend for about two years. He asked her to describe their relationship, and her view of him as a person. Ms. Frizzel stated that they were very good friends but no more than that, that he was considerate and helpful, and that even when lost together on "back roads":

[He] never once verbally or physically made advances toward me, and I don't believe that . . . [he] would have anyway.

17During cross-examination counsel for the Commission, after verifying that the witness was testifying with respect to the general character of the respondent, asked the witness a series of questions. Counsel asked whether Ms. Frizzel knew that Mr. Hardy had been convicted of:

1. assault causing bodily harm, on November 12, 1973;

2. rape, on January 27, 1976;

3. rape, on July 26, 1977 (for which he served five years);

4. break, enter and theft, on January 27, 1976;

5. night trespass, on October 24, 1984;

6. was still on probation for conviction of a criminal offence.

18The respondent was surprised by this information and asked why it was brought before the Board. I explained to him that once he had by his own decision introduced evidence of his character before the Board — presumably to show that he was not the kind of person who would commit the act complained of — he gave the complainant the opportunity to counter with evidence that he was indeed the kind of person who might well commit the act in question. Mr. Hardy did not dispute the accuracy of the evidence, but protested that it was unfair. It was certainly unfortunate for him, but I would observe that, it was the kind of risk that the respondent regrettably took when he proceeded without the advice of counsel.

19Although Mr. Hardy was asked whether he would give evidence of what happened during the events leading to Ms. Bishop's dismissal, he declined, saying only that "it didn't happen", and that there was nothing more to say.

The Finding on the Facts

20This Board, while aware of the deficiencies of proceeding without counsel when important matters of evidence are to be decided, nevertheless finds that there is sufficient evidence to come to a conclusion on the facts. The testimony of Ms. Bishop, and her subsequent conduct as verified by Ms. Veno and Mrs. Stewartt, were consistent with her complaint that Mr. Hardy requested sexual favours as a condition of keeping her job. That evidence raised an inference sufficient to establish the complaint of Ms. Bishop and unless the respondent presented evidence to rebut that inference it should stand.

21The evidence presented by the respondent is not persuasive. His cross-examination of the witnesses for the complainant did not bring their evidence into question. Neither in his cross-examination of the complainant, nor in the evidence brought before the Board in his defence, did he put forward an alternative version of the events. He simply denied that Ms. Bishop's version was true. Moreover, the character evidence introduced — to demonstrate that he was not the kind of person who would commit the act complained of — backfired: cross-examination of one of his character witnesses, in establishing that he had been convicted of sexual and other violent offences, suggests that he is a person who was more likely than the average person rather than less to have acted as alleged by the complainant.

22On the evidence before this Board, I find that the respondent, Scott Hardy, did request sexual favours from the complainant, Carolyn Bishop, as a condition of her retaining her position as a part-time employee. Mr. Hardy's conduct, therefore, is in breach of section 6(3)(b) of the Ontario Human Rights Code stating that:

Every person has a right to be free from, . . . a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

The conduct, as established, is prohibited by section 8 of the Code, and the complainant is entitled to a remedy pursuant to section 40.

Remedies

STATUTORY COMPENSATION FOR LOSS OF EMPLOYMENT

23The complainant had been employed by the respondent as a trainee for five weeks on a part-time basis, working about 23 hours per week. She was learning a trade under uncertain conditions: it appears that the volume of business was highly variable and workers often stayed for only short periods. Counsel asked for one month's compensation, which seems reasonable in the circumstances. Ms. Bishop earned $4 per hour, 23 hours per week for 4.3 weeks, a total of $395.

GENERAL DAMAGES

24It is always difficult to arrive at an appropriate sum for general damages to compensate for mental anguish, a sum that neither trivializes the harm suffered nor is unduly harsh to the respondent. At the time of her dismissal from her first job, the complainant was a young woman, 19 years old, and living away from home. She was very upset at the time and very likely remained upset for a considerable time afterwards. Fortunately, the sexual harassment was in words alone and did not involve any physical contact or threat of physical contact. While that fact does not excuse the respondent's conduct, in my view it makes it somewhat less upsetting to the complainant than in those cases where the respondent has made uninvited physical contact with the victim or has threatened to do so. After reviewing some of the decisions, and in particular Olarte et al. v. Commodore Business Machines et al. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Cumming), I find that $1500 is an appropriate sum in general damages.

COMPLIANCE WITH THE CODE

25The Commission has asked for an order that Mr. Hardy's hiring practices and conduct with respect to female employees be monitored by the Commission in order to ensure compliance with the Code. It has requested that for two years Mr. Hardy be required to inform the Commission in writing whenever a female employee leaves his employment and that he furnish her name and address, the period of employment and her employment record including reasons for termination. Such orders for monitoring and compliance have been granted in other cases and are justified in the circumstances of this case.

Order

26This Board of Inquiry, having found the respondent Scott Hardy to be in breach of section 6(3)(b) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981 c. 53, as amended, in respect of complainant, Carolyn Bishop, for the reasons given, this Board of Inquiry orders the following:

27The respondent shall pay forthwith the complainant, as follows:

(a) as statutory compensation for lost wages, the sum of three hundred and ninety-five ($395) dollars;

(b) as general damages, the sum of fifteen hundred ($1500) dollars.

28The respondent shall, each time a female employee leaves his employment in the next two years, deliver in writing to the Ontario Human Rights Commission, the following information:

Ӣ the name and address of the employee;

Ӣ the period of her employment;

Ӣ her employment record, including the reasons for termination.