Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Julia Chu
Complainant
v.
George Persichilli
and
337379 Ontario Ltd., carrying on business under the name of Snow City Cycle
Respondents
Date of Complaint: September 19, 1985
Date of Decision: November 16, 1987
Place: Toronto, Ontario
Before: Berend Hovius
Comm. Decision No.: 319
Appearances by: Bella Fox, Counsel for Julia Chu and the Ontario Human Rights Commission
Richard Kesten, Counsel for George Persichilli and Snow City Cycle
SEXUAL HARASSMENT — sexual advances by employer
Summary: The Board of Inquiry dismisses the complaint of Julia Chu in which she alleged that she was sexually harassed by her employer, George Persichilli at Snow City Cycle.
The Board finds that the allegations that Mr. Persichilli made sexual advances to her, touched her in a sexual way, and engaged repeatedly in offensive and harassing verbal behaviour are unproved. The Board prefers the testimony of Mr. Persichilli to that of Ms. Chu and accepts his evidence that, while language in the shop at Snow City Cycle was crude, he made no sexual advances to Ms. Chu, did not touch her, and engaged in no verbal harassment.
The complaint is dismissed.
Introduction
1These proceedings arise out of a complaint filed by Ms. Julia Chu alleging that Mr. George Persichilli and Snow City Cycle violated sections 4(1), 6(2), 6(3)(a) and 8 of the Human Rights Code, S.O. 1981, c. 53. On July 15, 1987 I was appointed by the then Minister of Labour, the Hon. William M. Wrye to act as a board of inquiry to hear and decide the matter.
2The hearing was first convened on August 11. On consent of the parties, it was adjourned to October 19. On October 19 and October 20 the evidence was heard. At the request of Ms. Fox and with the consent of Mr. Kesten the complaint was amended to add 337379 Ontario Limited as a respondent. This corporation operates the business known as Snow City Cycle.
The Facts
3Ms. Chu began to work part time at Snow City Cycle on August 15, 1985. After one or two weeks she accepted full-time employment there, earning $220 per week. She worked mainly in the office alongside Mrs. Persichilli and Sandra Brodigan. The job functions of all three women required them to leave the office intermittently so that any one of them would be left alone in the office for short periods of time. On September 18, 1985 Ms. Chu informed Mrs. Persichilli that she could no longer work at Snow City Cycle because Mr. Persichilli was engaging in sexual harassment. The next day Ms. Chu approached the Human Rights Commission in order to begin complaint proceedings.
4Snow City Cycle is a motorcycle and snowmobile shop owned by a numbered corporation in which Mr. and Mrs. Persichilli each have a 50 percent interest. The business involves both sales and service. While Mrs. Persichilli supervises the administrative side of the business, Mr. Persichilli is concerned mainly with actual sales and service. In 1985 the business employed about ten persons.
5The shop itself, presently being expanded, was quite small in 1985. It consisted of about three thousand square feet in total of which some nine hundred square feet were used as a show room. Much of the remaining space was taken up by the service department which was separated from the rest of the premises by a brick wall and a heavy steel door. Conversations in the rest of the premises could not be overheard in this area. At the back of the show room was a parts counter and beside it was the small office in which Ms. Chu spent most of her time. This office had a window. When it was open, conversations within the office could be overheard at the parts counter; in most, if not all, of the show room; and even in sections of a trailer where second hand parts were stored. According to Mrs. Persichilli this window was always open. Mr. Chalk, who was in charge of the parts department in 1985, stated that both the door and the window were normally open. I conclude that the door and particularly the window were rarely closed. There is one other physical feature of the premises which was stressed by several witnesses and which none disputed. The aisle space in certain parts of the premises was extremely narrow so that people had to squeeze sideways to pass one another. It was common for persons to brush or touch one another as they passed.
6Before dealing with the conflicting testimony regarding the events of August and September of 1985, there is one other undisputed fact which should be mentioned. Ms. Chu has had a history of psychiatric illness. Diagnosed as a paranoid schizophrenic, she had been hospitalized on three occasions before the events which were the subject of the complaint and was still seeing a psychiatrist on a regular basis at the time. Nevertheless, she was functioning well when she began employment at Snow City Cycle. In 1986, the symptoms of her illness manifested themselves strongly once again and she was given day treatment for several months at a local hospital. She is still presently under psychiatric care and on medication.
7Ms. Chu's psychiatrist, Dr. Chang, testified that he began treating her in July 1986 after she was referred to him by another psychiatrist. He described the symptoms of paranoid schizophrenia as "disorganization in emotions and thinking, so that during that type of schizophrenia the patient is disorganized and confused and emotions can be inappropriate in that they don't react to situations like ordinary people do" (pp. 93–94, Transcript). He indicated that the illness was incurable but controllable so that about two-thirds of people with schizophrenia can function quite well in society. It is quite common for schizophrenics to exhibit the symptoms periodically while functioning normally in between these episodes. Dr. Chang acknowledged in cross-examination that people with Ms. Chu's illness tended to be over-sensitive.
8It is now necessary to deal with the conflicting testimony relating to the events of August and September of 1985. Ms. Chu recalled that from the beginning of her employment at Snow City Cycle Mr. Persichilli would comment on her appearance and asked her about possible boyfriends. This did not cause her any concern as is indicated by the fact that she accepted full-time employment after one or two weeks. Moreover, she described his comments at this stage as compliments and stated (p. 22, Transcript): "I think it is kind of nice to have a compliment."
9The complainant next described several incidents which were not specifically the subject of her complaint but which made her feel uncomfortable after she began to work full-time. The first of these was a request by Mr. Persichilli in front of a mechanic to translate "69" into Chinese. The mechanic later told her of the sexual connotations of the expression "69." In her words, "it is something filthy" (p. 23, Transcript). She also recounted that Mr. Persichilli once asked her laughingly whether she had seen the stool in the washroom. She stated that this "made me sick" (p. 23, Transcript). On another occasion Mr. Persichilli allegedly expressed an intention to join her in the washroom to remove his pants in front of her. She also related that Mr. Persichilli had advised her to improve her skills on the telephone by offering to make love to the customers.
10Ms. Chu then began to describe the various incidents which led her to quit her job and file the complaint. In early September, Mr. Persichilli, in front of his wife, stated that his wife would not mind if he and Ms. Chu had an affair. According to Ms. Chu, Mr. Persichilli offered her a car on September 16, 1985, a day on which both Mrs. Persichilli and Ms. Brodigan were away, if she would make love with him. When she refused he became angry, asked her if she was a virgin and promised to give her sex education. The next day, the request was allegedly repeated coupled with a comment that she looked horny in the pants she was wearing.
11The complainant also described one incident of physical contact. She stated that Mr. Persichilli "slapped my buttock one day and then he laughed and he say that did any boy touch me like that before" (p. 25, Transcript).
12In the remainder of her testimony-in-chief, Ms. Chu related her futile attempts to find another job after September 18, 1985. She indicated that she had problems whenever she was interviewed by men because she feared that they too might sexually harass her.
13In cross-examination, the complainant recalled that she had spoken to Ms. Brodigan about her concerns. She also stated that Mr. Persichilli frequently made sexually offensive comments to Ms. Brodigan.
14Before considering the testimony of the other witnesses, I note that there are clear discrepancies between Ms. Chu's testimony at the hearing and the complaint itself. In her complaint she alleged that Mr. Persichilli made sexual advances to her on "a continual basis from the start of my employment" (paragraph 2) and that "[a]lmost every day, the respondent asked me at least once to have sex with him" (paragraph 6). In her testimony she stated that the first sexual advance and request was made on September 16 and that it was repeated one time on September 17. The complaint alleged that Mr. Persichilli "touched my thigh and asked me if any other boy had touched me before" (paragraph 5). No mention of this touching was made during her testimony. Instead, Ms. Chu indicated that Mr. Persichilli slapped her on the buttock and asked her if any other boy had touched her there before. Finally, paragraph 3 of the complaint stated that in early September 1985 "in front of his wife, Vira, the respondent asked me to make love with him. He added that she would not mind if he had an affair with me." In the oral testimony relating to this incident, the complainant stated only that Mr. Persichilli claimed in front of his wife that the latter would not mind if he and Ms. Chu had an affair.
15To corroborate Ms. Chu's testimony, Ms. Fox called Mr. Sheppard as her next witness. He worked at Snow City Cycle as a mechanic in the service area while Ms. Chu was also employed there. He was clearly ill at ease while testifying and it soon became apparent that he was not going to be as helpful to the complainant's case as counsel wished. He testified that he could not recall any specific comments made by Mr. Persichilli which might have bothered Ms. Chu. He did, however, acknowledge signing a witness statement on October 25, 1985 at the request of Ms. Chu. It stated (p. 87, Transcript):
I have witnessed a couple of incidents in which George Persichilli made remarks to Julia Chu which were sexually insulting or degrading during her employment at Snow City Cycle.
While stating that the statement was true when he signed it, he repeated that he could not recall any specific comments. On cross-examination, Mr. Sheppard indicated that Ms. Chu had suggested the wording of the statement and that he had signed it because he felt sorry for her. She had returned to Snow City Cycle in an attempt to get other employees to sign similar statements and had told Mr. Sheppard that no one else would do so. He stated that his initial reaction to her request was one of surprise: "I didn't have any idea what was going on until she told me that she was suing George for sexual harassment and I was surprised" (p. 89, Transcript). He also indicated that if someone were to ask him to now sign a similar statement relating to the same incident he would refuse.
16Mr. Sheppard also had difficulty recollecting what he had said to the Commission's Investigating Officer in a telephone conversation in February of 1986, but indicated that what he said "may have been exaggerated because there was a bit of a disagreement between myself and Snow City." Mr. Sheppard had, in fact, ceased to be employed at Snow City Cycle in January of that year after a dispute with Mr. Persichilli. He was either fired (Mr. Persichilli's recollection) or left of his own accord once he realized things were not working out (Mrs. Persichilli's recollection).
17In her testimony the Commission's Investigating Officer, Ms. Fiddes, reported that the only specific comment of Mr. Persichilli to Ms. Chu mentioned by Mr. Sheppard in the telephone conversation of February 1985 was to the effect that Mr. Persichilli offered Ms. Chu a car if she would make love to him. If Mr. Sheppard had indeed overheard this remark, this would be strong corroboration of Ms. Chu's allegation regarding the sexual solicitation by Mr. Persichilli on September 16, 1985. For several reasons, I do not believe that he overheard it. Most importantly, Mr. Sheppard indicated under oath at the hearing that he could not recall any specific remarks by Mr. Persichilli to Ms. Chu and that he may have exaggerated because he had had a disagreement with Mr. Persichilli. It would require a remarkably poor memory to forget such a blatantly improper request by an employer of an employee, especially when Mr. Sheppard knew from October 1985 on that the complainant was bringing proceedings against Mr. Persichilli. It was also unlikely that Mr. Sheppard would have had an opportunity to overhear this remark. I inferred from the complainant's evidence that it was made in the office. As a mechanic, Mr. Sheppard would be spending almost all of his time in the service area where one could not overhear office conversation. I conclude, therefore, that Mr. Sheppard was lying to Ms. Fiddes in February 1985 in order to exert revenge against Mr. Persichilli. By that time he was fully aware of Ms. Chu's specific allegation and it was easy to claim that he had overheard one of the sexual advances.
18Nevertheless, the witness statement by Mr. Sheppard does somewhat corroborate Ms. Chu's testimony. Under oath, he said that the statement was true when he signed it in October 1985. It matters little that he signed it out of sympathy for Ms. Chu or that he would not sign it today. However, the statement does not indicate any specific comments which Mr. Sheppard overheard. Apparently they were sexually insulting or degrading in Mr. Sheppard's opinion, but I do not know what standard Mr. Sheppard was applying. It is unlikely that he overheard the actual sexual solicitation which allegedly occurred on September 16 and 17. In addition to the reasons for this conclusion referred to in the previous paragraph, it should be noted that Mr. Sheppard was totally surprised when Ms. Chu told him in October that she had brought a complaint against Mr. Persichilli. I repeat his words: "I didn't have any idea what was going on until she told me that she was suing George for sexual harassment and I was surprised" (p. 89, Transcript). If he had actually heard a sexual advance by Mr. Persichilli such a reaction would not likely occur.
19The next witness called by Ms. Fox was Dr. Chang. Of course, he had no first-hand knowledge of the events of August and September 1985 at Snow City Cycle. However, Ms. Chu had informed him of the incidents which are the subject of this complaint. She was, he stated, still quite distressed by them, had difficulty trusting men, and overreacted to contact with men. He was unwilling, however, to conclude that Ms. Chu's most recent relapse in 1986 was caused by these incidents. Asked about the relationship between this relapse and her employment at Snow City Cycle, he replied (p. 98, Transcript):
It would all be speculative. The fact is that she was well for six years until the recent relapse. It lasted longer than it should but I really can't go further than that.
20In cross-examination, Dr. Chang was asked directly if he believed sexual harassment had taken place while Ms. Chu was employed at Snow City Cycle. He began by saying: "It is not easy to judge" (p. 102, Transcript), but hastily added: "I take my patient's word for it" (p. 102, Transcript). Later he pointed out that it was not up to him to judge since that was a function of the board of inquiry. He did acknowledge, however, that people with Ms. Chu's type of illness tended to be over-sensitive.
21Dr. Chang was called as a witness mainly to give evidence that would be relevant to the question of damages if a violation of the Code was found. His testimony was also supportive of the complainant's story in that he believed that some of her problems might be causally linked to sexual harassment. Of course, other causes could also be responsible and, as previously noted, the complainant had had a history of psychiatric illness long before 1985.
22The last witness called by Ms. Fox was Ms. Fiddes, the Commission's Investigating Officer. Her testimony regarding a telephone conversation with Mr. Sheppard has already been reviewed. Ms. Fiddes also related a statement made to her by Ms. Kate Jones. Ms. Jones was apparently served with a summons to testify at the hearing but did not appear. Before Ms. Fiddes began to present the story told to her by Ms. Jones, the respondents' counsel objected on the basis that it was hearsay evidence. I ruled that, under the Statutory Powers Procedure Act which governs these proceedings, hearsay evidence is admissible provided it is relevant and that its hearsay nature affects its weight and not its admissibility. I indicated that I would take into account the fact that cross-examination of Ms. Jones was obviously not possible in the circumstances. At the time I made this ruling I was unaware of the fact that Ms. Jones had not worked at Snow City Cycle at the time of the alleged incidents which form the basis of the complaint. It was only when Ms. Fiddes related the conversation that she had had with Ms. Jones that I became aware of the fact that its only possible relevance was as similar fact evidence. If that had been clear at the outset or if a further objection had been made to the relevance of this similar fact evidence, I might well have ruled that its prejudicial impact outweighed its probative value.
23In any event, Ms. Fiddes testified that Ms. Jones had told her that Mr. Persichilli frequently made sexual comments to all women, herself included. Some examples of sexually degrading or insulting comments directed at Ms. Jones were given. None of them involved actual advances or solicitation on the part of Mr. Persichilli.
24The probative value of this evidence is, at best, slight. Ms. Jones was, in effect, giving evidence through Ms. Fiddes. The Board had no opportunity to assess her credibility and the respondents' counsel was denied the opportunity to cross-examine her. Moreover, it is unclear in what context these remarks were allegedly made. In cross-examination, Ms. Fiddes acknowledged that she did not know whether the remarks were directed to Ms. Jones while she was an employee for an undetermined length of time at Snow City Cycle in 1982. Ms. Jones only worked at Snow City Cycle for a brief period of time. She was and apparently remains a friend of the Persichillis. The comments may have been made in a social context completely divorced from an employer-employee relationship. Indeed, Mr. Persichilli attempted making one of them at a snowmobiling party after the entire group had had too much to drink. I might add that he denied all of the other allegations in the statement made by Ms. Jones. The fact that Mr. Persichilli may have made sexually degrading comments to a personal friend at a party or in some other unspecified context is, no doubt, reprehensible. But it does little, if anything, to establish that Mr. Persichilli as an employer made sexual advances coupled with improper comments to his employee, Ms. Chu.
25I now turn to the evidence presented on behalf of the respondents. Mr. Persichilli, the first witness called by Mr. Kesten, explained that he was not involved in the decision to hire Ms. Chu and did not closely supervise her work because Mrs. Persichilli supervised administrative matters in the business. He did, however, speak to Ms. Chu on at least one occasion about communicating more clearly on the telephone as a result of customer complaints. At first he stated that this conversation occurred the day before Ms. Chu quit her employment. Later he recalled that the matter must have been raised on the previous Friday as well because he gave her the weekend to practice enunciating Snow City Cycle. Mr. Persichilli strongly denied that he had suggested to her that she offer to make love to the customers.
26Mr. Persichilli acknowledged that it was his habit to compliment the female employees on their appearance and that Ms. Chu was no exception. This accorded with Ms. Chu's testimony and that of several other witnesses who followed Mr. Persichilli. He admitted that it was possible that he said she looked horny on one occasion although he could not recall this actually happening. He denied ever asking Ms. Chu about her relationship with men.
27When asked about the incident involving the expression "69," he recalled that the complainant had walked by while he and a number of mechanics were discussing a 1969 Yamaha. It was possible, he said, that one of the group other than himself asked her as a friendly gesture to translate "69" into Chinese. Regarding Ms. Chu's testimony that he had once asked her about a stool in the washroom, he said: "I have no idea what that is all about. That blew my mind" (p. 227, Transcript) and "If anything I might have said ”˜Make sure people flush the toilet'." The language generally in the shop was described as "rough" (p. 224, Transcript) and "salty" (p. 225, Transcript). While she may have overheard some of this language, Ms. Chu never complained to him about it nor did she ever indicate that she was offended by any remarks made to her.
28Mr. Persichilli explicitly denied the specific allegations of sexual solicitation made in the complaint. He also insisted that he had never slapped Ms. Chu, although he admitted that it was almost impossible for persons to pass one another in the narrow aisles of the business without touching. He referred to Ms. Chu's allegation that he had once suggested that they both go into the washroom where he would remove his pants in front of her as "absurd" (p. 228, Transcript).
29I was impressed with Mr. Persichilli's demeanour while testifying. He appeared open and forthright in his testimony. He could, for example, have insisted that none of the comments referred to in Ms. Jones' statement ever occurred. Instead, as noted previously, he admitted making one of them and supplied the context. Even when he could not recall that he had ever described Ms. Chu as horny, he did not deny that it was within the realm of possibility. It was pointed out by Ms. Fox in her closing arguments that some of Mr. Persichilli's comments in his testimony revealed a male chauvinist attitude. I think that is true, but his willingness to make these comments in this setting indicated that he was not trying to hide his true nature or personality from the Board. It showed that his was not the evidence of a well-coached witness trying to present a false face but rather of a man who believed he had nothing to hide.
30Mrs. Persichilli was the next witness. She too described the language in the shop as "rough" (p. 263, Transcript) and stated that she made a point of warning prospective female employees, including Ms. Chu, of this fact. This contradicted Ms. Chu's earlier testimony to the effect that no such warning had ever been given to her. Mrs. Persichilli also insisted that, contrary to Ms. Chu's evidence, Mr. Persichilli had never suggested in front of her that she would not mind if he and Ms. Chu had an affair. She also stated that she had not overheard any conversations between the complainant and Mr. Persichilli relating to boyfriends, the expression "69," a stool in the washroom, offering to make love to customers over the phone, or a possible affair between the two of them.
31There is only one other item of information supplied by Mrs. Persichilli that is worthy of note. She stated that both she and Ms. Brodigan had been away on September 16 on a business trip to Quebec. However, contrary to the testimony of Ms. Chu, the two women were back at work on September 17. This was confirmed by Ms. Brodigan who appeared as the next witness.
32Ms. Brodigan has been employed at Snow City Cycle for ten years. She indicated that she loved working there and that it was fun working with Mr. Persichilli. He sometimes complimented her on her appearance, but never made any inquiries or comments about her sexual or social life. She could not recall overhearing any conversations between Mr. Persichilli and Ms. Chu other than one or two in which Mr. Persichilli asked Ms. Chu to speak more loudly on the telephone. She mentioned that there was some "bad language" in the shop at times (p. 292, Transcript). Finally, she insisted that Ms. Chu had never spoken to her about anything that bothered the complainant during her time at Snow City Cycle. This is significant because Ms. Chu had testified that she had discussed Mr. Persichilli's offensive comments with Ms. Brodigan sometime in September 1985.
33The other witnesses heard by the Board testified briefly. Mr. Chalk, who worked at the parts counter in August and September of 1985 and is presently service manager, indicated that the language in the shop was "quite coarse" (p. 305, Transcript) but that he had never heard Mr. Persichilli make any gross or offensive comments to any of the female staff including Ms. Chu. Ms. Ardellini, who is the niece of Mr. and Mrs. Persichilli, worked at Snow City Cycle during the evenings of 1985. As Ms. Chu worked only during the day, Ms. Ardellini had no first-hand knowledge of any contact between Ms. Chu and Mr. Persichilli. She did testify that the language was a little coarse at times but that this did not bother her. She denied ever hearing her uncle make coarse or personal comments to women at work. Mr. Annabelle worked at Snow City Cycle prior to 1983 and since that time has visited the premises to make use of the service area. He made some general, favorable comments about the atmosphere at Snow City Cycle and Mr. Persichilli's relationship with the employees, but could shed little light on the events of August and September 1985.
34On the evidence before me, I conclude that the allegations that Mr. Persichilli asked Ms. Chu to have sex with him have not been proved even on a balance of probability. I also find that the Commission has failed to prove the offensive comments which allegedly accompanied these requests or followed their rejection. Several of the reasons for my significant doubts regarding Ms. Chu's version of these incidents have been alluded to in my review of the evidence. The corroborative evidence presented by the witnesses called by Ms. Fox was weak. It is, of course, true that in most cases of actual sexual solicitation there will not be a third party who witnessed the incident. It is common for these cases ultimately to become a credibility contest between the complainant and the respondent. As mentioned, I found the respondent in this case to be a credible witness. On the other hand, there were some clear flaws in the complainant's testimony. There was considerable discrepancy between the facts alleged in the complaint and those presented in the complainant's oral testimony. I also conclude that the complainant was mistaken when she stated that Mrs. Persichilli and Ms. Brodigan were still away on a business trip on September 17, 1985. This is significant because it was on this day that the second and last sexual solicitation was said to have occurred. Other parts of the complainant's testimony were directly contradicted by not only Mr. Persichilli but also Mrs. Persichilli and Ms. Brodigan. These witnesses, I acknowledge, continue to have a close relationship with Mr. Persichilli; but I do not think that they were lying to protect his and their interests.
35Although I do not place great weight on this fact, It should also be noted that the nature of the premises and the way in which business was conducted gave the respondent very little opportunity to make sexual advances to Ms. Chu without the danger of being heard. Yet, the only witness who ever claimed to have overheard Mr. Persichilli actually solicit sex with Ms. Chu retracted this claim on the witness stand and gave an explanation for the original, false claim.
36I also conclude that Mr. Persichilli never slapped Ms. Chu on the buttock. My reasons for this conclusion mirror those set out in relation to the alleged sexual solicitation. In particular, I would stress that the complaint itself referred to a touch on the thigh which was transformed into a slap on the buttock in oral testimony.
37These conclusions dispense with the main factual allegations made in the complaint itself. At the hearing, Ms. Chu mentioned several other matters which I will now address. I find as a fact that Mr. Persichilli was in the habit of complimenting the female employees, including Ms. Chu, on their appearance. At first, Ms. Chu did not find these comments, nor the questions about possible boyfriends which may have accompanied them, to be offensive. In fact, she appreciated them as genuine compliments. When Mr. Persichilli later described her as "horny" (p. 23, Transcript), she was offended. The respondent apparently has used this expression as a synonym for "sexy" and I conclude that he probably made this statement to Ms. Chu in a stupid attempt to compliment her. I also conclude that the language used by Mr. Persichilli and others at Snow City Cycle is sometimes coarse and off-colour. This may have made Ms. Chu uncomfortable, but she never expressed this to Mr. Persichilli. Indeed, neither in her complaint nor at the hearing did Ms. Chu indicate that she was offended by the language generally used at Snow City Cycle. What offended her were the alleged incidents of sexual solicitation and the degrading comments that accompanied them. I have already found that these incidents were not proved. In her testimony she also referred to Mr. Persichilli's request of her to translate "69" into Chinese, his report of a stool in the washroom, his suggestion that she improve her telephone skills by offering to make love to the customers, and his offer to join her in the washroom. None of these incidents formed the basis of the complaint and none of them was proved on a balance of probability.
Conclusion
38The allegation that Ms. Chu was subjected to sexual solicitation or advances by Mr. Persichilli was not proved. I must, therefore, conclude that there was no violation of section 6(3)(a) of the Code.
39I also find that there was no violation of section 6(2). It specifies:
Every person who is an employee has the right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
"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." The facts which were proved do not, in my opinion, constitute sexual harassment.
40Mr. Persichilli's habit of complimenting Ms. Chu cannot be termed "engaging in a course of vexatious comment or conduct" for the simple reason that Ms. Chu was clearly not offended, annoyed or bothered by it. It is true that on one occasion he offended her by describing her as "horny." However, the definition of harassment in section 9(f) clearly indicates that more than one event is required. In Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972, Ms. Bayefsky states (at para. 31526):
"Course" suggests that harassment will require more than one event. There must be some degree of repetition of the "vexatious comment or conduct" in order to constitute harassment.
41In the circumstances of this case, the occasional use of coarse or off-colour language by Mr. Persichilli and others in the shop did not amount to sexual harassment either. The use of such language was very much a peripheral aspect of the case and, as noted, the complainant did not indicate that she was generally offended by it. What offended her were the alleged incidents of sexual solicitation and the degrading comments that accompanied them.
42I would add that section 6(2) refers to freedom from harassment because of sex. This suggests that the use of bad language in the workplace cannot by itself constitute a violation of section 6(2). The language used must, at a minimum, be sexually demeaning. As Ms. Bayefsky states in Cuff, supra, (para. 31517):
The policy of prohibiting sexual harassment in the workplace is to recognize that the dignity of an employee requires treatment and opportunity which is independent of sexuality. It is a policy of respect for the many human qualities which are relevant to employment or advancement; it is a denial that willingness to tolerate coercive sexual encounters or a sexually demeaning work environment is one of those qualities.
It is possible that the injection of demeaning sexual stereotypes into the workplace by way of comments or jokes, whether they are directed at the complainant or others, may be of such a nature and degree to constitute sexual harassment (see: Cuff, supra, para. 31528). Other than the reference to Ms. Chu as "horny," no specific comments or jokes of this type were proved in this case.
43Although the complaint alleged that the respondents' actions violated section 4(1) as well as sections 6(2) and 6(3)(a) of the Code, there is no need in the circumstances of this case to deal with the former section. The claims of the complainant fell clearly and obviously within sections 6(2) and 6(3)(a). The only possible discrimination because of sex which it was claimed had occurred involved the alleged sexual harassment and sexual solicitation in the workplace. Prior to the introduction of sections 6(2) and 6(3) explicitly prohibiting sexual harassment in the workplace and certain forms of sexual solicitation or advances, Ontario boards of inquiry held that such activities could constitute discrimination because of sex in the workplace contrary to section 4(1). This approach is no longer necessary in Ontario at least where the alleged conduct, if proved, would constitute a violation of the new, more particular, provisions.
Accordingly, the complaints against the respondents are dismissed.