Purdy v. Marwick Manufacturing Co.
1987-11-19
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1981
Brenda Purdy Complainant
v.
Marwick Manufacturing Company, its Servants and Agents and Paul Arthur and Don Bianco and Dave Alioe Respondents
Date of Complaint: April, 1984
Date of Decision: November 19, 1987
Place: Toronto, Ontario
Before: C. Gordon Simmons
Comm. Decision No.: 330
Appearances by: Stephen Mason, Counsel for Brenda Purdy and the Ontario Human Rights Commission R. Birken, Counsel for Marwick Manufacturing Company and Paul Arthur, Don Bianco, and Dave Alioe
SEXUAL HARASSMENT — sexual advances by co-worker — LIABILITY — employer/corporate liability for employee — personal liability
Summary: The Board of Inquiry finds that Brenda Purdy was sexually harassed by two co-workers while she was employed at Marwick Manufacturing Company.
Brenda Purdy was employed as a labourer assembling wallpaper sample books. She alleges that she was sexually harassed by Paul Arthur and Don Bianco and that her conditions of employment were affected by her refusal to comply with their advances.
Brenda Purdy alleges that Paul Arthur and Don Bianco touched her, solicited sexual attentions from her, and showed her pornographic materials. She also alleges that Don Bianco pulled down his pants in front of her. When she complained of this behaviour to the company's President Mr. Alioe, she was moved to work with an associated company. She worked there two days and then quit.
The Board of Inquiry finds that Brenda Purdy was the one who produced the pornographic materials and showed them to the two men. The two men then harassed her, for which the Board finds Arthur and Bianco, but not the company, liable. The Board finds that Mr. Alioe arranged alternative employment for the complainant and expected her to continue in it. No liability accrues to the company. Ms. Purdy chose to leave this employment.
In the circumstances, the Board of Inquiry orders both Paul Arthur and Don Bianco to pay Brenda Purdy $150 in general damages.
1This inquiry concerns a complaint by Ms. Brenda Purdy against her employer, Marwick Manufacturing Company (hereinafter the "employer"), its president Mr. Dave Alioe and two of its servants, Messrs. Paul Arthur and Don Bianco. Her complaint alleges that her rights under the Ontario Human Rights Code, 1981 (hereinafter the "Code") were violated, especially with respect to sections 4(1) and 8, because of sex; section 6(2), because of harassment; section 6(3)(a), because of sexual solicitation by a person in a position to confer or deny a benefit where that person knows that the advance is unwelcome; section 7, because of reprisal or threat of reprisal against her for her right to claim and enforce her rights under the Code.
2The parties almost totally disagree over what transpired on the day in question. Indeed, the respondents deny any and all of the allegations. Consequently, it will be necessary to relate the facts in detail.
3Ms. Purdy commenced employment with the employer on or about March 6, 1984 as a labourer. The alleged incident occurred on April 23, 1984, approximately eight weeks after the commencement of her employment. On the day of the incident Ms. Purdy, along with two other employees, were working at a table where they were assembling wallpaper sample books. Each of the three employees worked approximately three feet from each other performing certain functions in assembling the wallpaper sample books. There is some difference of opinion over precisely where the table was located where Ms. Purdy, et al. were working. However, nothing turns on this point. One of her co-workers at the table was female and the other was an elderly gentleman whom she believed to be Vietnamese. She did not recall either of their names.
4Messrs. Arthur and Bianco were working in a remote area of the plant called the Waldec area. This area is enclosed by a wall from the larger area of the plant and, it is agreed, people working in the Waldec area would not be visible to other employees working in the plant. Messrs. Arthur and Bianco's work requirements compelled them to periodically leave the Waldec area and return to the main area of the plant where other employees were working, a distance of approximately two hundred and fifty feet. In walking from the Waldec area to the main area where others were working it was necessary to pass nearby where the complainant and the two other employees were working at the table mentioned earlier. My impression is the table was situated somewhere between the Waldec area and the main area where a number of employees were working.
5According to Ms. Purdy's evidence, she was working at the table when Paul Arthur walked by whereupon he grabbed her "rear end." She told him to get lost. Mr. Arthur commented that if she would be nice to him, or go to bed with him he would talk to his brother-in-law, the foreman, about moving her to another job. She states in her complaint that she refused the advance. Her testimony continued that they called her back to where they were working indicating to her that they wanted to show her something. She went back and they showed her a book containing naked women. Ms. Purdy stated that she informed them that "it didn't do nothing for me, so I turned and walked away" (See Transcript p. 6). After a little while, just before the afternoon break, according to Ms. Purdy, Don Bianco walked by her table and he also grabbed her rear end. Later, Paul Arthur was returning to his work area in the back of the plant and upon passing her work area told Ms. Purdy that he had something in the back area that he wanted her to see so she accompanied him to the area whereupon Don Bianco pulled down his pants in front of her. She turned around and walked back to where she was working. According to Ms. Purdy, a couple of minutes later Bianco and Arthur again passed her work table on their way to the front of the plant at which time Bianco said that he had won the bet. Ms. Purdy understood the comment to mean that he had won the bet that he would pull his pants down (see Transcript pp. 11–12). It was at about this time that she became upset. It was almost breaktime and her female co-worker told her to go and tell the foreman what had happened. Messrs. Arthur and Bianco categorically deny that any of the foregoing events took place as Ms. Purdy has described them. Their testimony was to the effect that Ms. Purdy did indeed come to the area where they were working that day but it was of her own volition and that she had in her possession a little pornography magazine (see Transcript p. 74 for Bianco's evidence and p. 83 for Arthur's). Ms. Purdy denied that she ever brought any books or pictures of naked men or women into the plant. I will address this matter further later in this decision.
6Ms. Purdy stated that she went to see the foreman, Mr. Sam Wakillie who advised her to go to see Mr. Alioe. The evidence at this point becomes somewhat less clear. It is uncertain whether Mr. Alioe was on the premises and whether he did not see her until the next day. In any event, Ms. Lori Mantovan, Bookkeeper and Office Manager, testified that she met Ms. Purdy on the morning of April 24 and noticed that Ms. Purdy was upset. Ms. Purdy related her story of what had happened to Ms. Mantovan and was asked by Ms. Mantovan if she wished to see Mr. Alioe. Apparently, Ms. Purdy proceeded to the washroom before continuing to see Mr. Alioe. According to Ms. Mantovan's evidence, she briefed Mr. Alioe on what she had been told by Ms. Purdy before Ms. Purdy spoke to him.
7While in the washroom two other employees visited the washroom. These employees were Maria Fiore and Kim Lattanville, both of whom testified that they noticed that Ms. Purdy appeared to be upset and that she informed them that Don Bianco had dropped his pants in front of her. Moreover, Ms. Fiore testified that Ms. Purdy informed them that the colour of his underwear was yellow. Both Ms. Lattanville and Ms. Fiore testified that they saw Mr. Bianco's underwear while sitting in the lunchroom and confirmed that it was yellow. Ms. Fiore stated that Mr. Bianco's outer pants were baggy and she could see his underwear and see that it was yellow.
8Ms. Purdy stated that she did not see Mr. Alioe that day because he was busy with a client and was told to go home. The next morning when she was about to punch in her time card Sam, the foreman, told her not to punch in but to go to the lunchroom and wait for Mr. Alioe. This evidence contrasts with what is contained on the time card which shows that she punched in on April 24 at 7:42 (Exhibit 5). However, she met Mr. Alioe and, according to her, was told that she was going to be laid off and was asked why would she want to work there anyway. She explained that it was a job
and then I told him that I was one week short of getting — having enough weeks to get unemployment. So he never let me work that day. He sent me home and I went in to work on the Grosnor side of the factory long enough to get the time that I needed for an insurable week so I could collect unemployment (Transcript p. 15).
The statement of her not working on April 24 is consistent with the time card. It shows that she punched out at 9:31.
9The reference to Grosnor in the above quote is a separate company that is also located in the plant with which Mr. Alioe is likewise associated. However, it is a completely separate entity from Marwick Manufacturing and occupies separate facilities. Ms. Purdy worked for the Grosnor company for two days following the interview with Mr. Alioe which were April 25 and 26.
10Mr. Alioe's recollection of the interview with Ms. Purdy differs considerably from hers. He said that she related to him the same or approximate same story as she gave in her evidence. He said that he declined to make any comment to her until he had an opportunity to investigate the matter. He stated that he had been president of the company for twenty-five years and had not experienced a similar incident in all of that time. During his investigation he was informed about Ms. Purdy having dirty books on the premises and some concern was expressed about her work habits. In any event, Mr. Alioe concluded that Ms. Purdy had not told him the truth about what had happened. He believed it was she who had picked on someone; that she might have a problem other than at work and whatever it was happened was just a flare up that would quickly blow over. He thought that by moving her to Grosnor, taking her away from where the "guys" worked, would solve the problem. It was his opinion that she seemed to have a problem with men. According to his story, she begged him not to lay her off or fire her because she has children with no husband to support them. She testified that she lives with a common-law husband who is earning a good living. However, he assured her that she could work for Grosnor and, as stated, she was assigned work there. Later, Mr. Alioe inquired of the foreman at Grosnor how matters were working out and was informed that she worked two or three days; stated that it was too boring and never showed up after the two or three days had passed.
11Ms. Purdy acknowledged that she drew unemployment insurance benefits after leaving Marwick and Grosnor until sometime in March 1985 when her benefits were about to run out. Indeed, she stated that she had been over paid and had to return one payment. In any event, she found alternate employment just prior to her benefits becoming exhausted.
12Given the foregoing facts who is to be believed? In my view, the outcome of this matter is heavily dependent on resolving the factual differences as told by the various witnesses. If one believes Ms. Purdy's story as to what transpired on April 23, then it would appear that she has established a prima facie violation of the Code. The law in this regard has been succinctly stated in Piazza v. Airport Taxi Cab (Malton) Assn. (1986), 1985 CanLII 5242 (ON HRT), 7 C.H.R.R. D/3196, the Ontario Board of Inquiry chaired by Professor Zemans, and the cases cited therein. On the other hand, if Ms. Purdy's version of what happened is not to believed then other considerations apply.
13In my view, there are certain aspects of the evidence that was called that are of assistance in deciding this matter to which I will now turn and discuss in greater detail. No degree of importance ought to be placed on the order in which they are discussed.
14One important evidentiary consideration revolves around the issue of the books or magazines that were brought onto the premises. Ms. Purdy testified that she had never brought books of naked women or men onto the premises. The evidence of Messrs. Arthur and Bianco is that she did in fact have such a book or magazine with her on April 23 and that it was she who showed it to them, not the other way around. Ms. Maria Valentini, an ex-employee, was first employed by the employer in 1968 and continued as an employee until 1986. Ms. Valentini's position was described as "floor lady" who held a supervisory position over the female staff. Ms. Purdy had not, however, been informed of this and thought that she was that she reported to Mr. Sam Wakillie, the foreman. In any event, Ms. Valentini testified that she had received complaints from young girls who worked on the premises that Ms. Purdy showed them dirty books. This testimony was not challenged in cross examination. Ms Valentini related the complaints of the youths to Ms. Mantovan and this was corroborated by Ms. Mantovan's testimony. Ms. Mantovan further testified that she carries on a youth program at the employer's premises which begins around April 14. The youths perform work on the gluing tables. Ms. Mantovan spoke to the youths herself who reiterated the complaints to her. Ms. Mantovan did not confront Ms. Purdy about this because she was afraid of Ms. Purdy. She had seen Ms. Purdy using bad language, kicking and hitting her (Ms. Purdy's) car in the parking lot because she had accidentally locked her keys in the car. Because of the manner in which Ms. Purdy was acting she stated that she was afraid to confront Ms. Purdy. As stated above, Ms. Valentini left her employment in 1986 and I cannot think of any reason why she would deliberately mislead me.
15Another concern I have regarding the evidence of Ms. Purdy related to the sequence of events which she described had occurred on April 23rd. She testified in examination-in-chief that Paul Arthur approached her, grabbed her rear end and commented that if she were nice to him he would speak to his brother-in-law about moving her to another job. Next, they called her back to where they were working where, after going to the back of the plant, they showed her the book containing pictures of naked women. Then later, Don Bianco approached her, grabbed her rear end and still later, when once again invited to the back where Arthur and Bianco were working, she complied. In cross-examination she testified that she was invited to look at the book in the back area before anyone touched her which appears to be at odds with her evidence-in-chief. However, I do not consider this variance in her testimony to be of any great significance. What is significant, however, is the fact that on the occasion of each incident she would have me believe that she was displeased with their actions and showed her displeasure either with words or by conduct. Assuming that she was displeased, I find it difficult to believe that, given the nature and the chronology of events as described that she would venture to the back of the plant a second time. Considering the matter objectively, it simply defies the actions of a reasonable person in all of the circumstances.
16This leads me to yet another aspect of Ms. Purdy's evidence which has caused me some concern which is the location where she states the alleged grabbings of her posterior and the solicitation took place. Her evidence is to the effect that all of these incidents took place at or near the table where Ms. Purdy and two other workers were working. The two respondents deny that these incidents occurred. I find it somewhat puzzling that her two co-workers at the table that day were not called as witnesses to corroborate her story. Ms. Purdy's explanation for not calling them was that she did not know their names. Moreover, she said that she was not prepared to ask Mr. Alioe what their names were as she was seeking to continue in her employment. But I am confident that with very little effort she could have acquired their names on April 25 and 26, or even a short while later. I am aware that one does not normally comment on the calling or not calling of witnesses by one or other of the parties to a proceeding. However, in the circumstances of this proceeding, I do not feel constrained to comment on the fact that her co-workers were not called, because Ms. Lattanville and Fiore attended the hearing by order of a subpoena. Ms. Purdy acknowledge that she had likewise not known Ms. Lattanville nor Ms. Fiore's names at the time of the incident but had somehow managed to obtain the required information to have subpoenas issued to them. She knew or at least thought that the male co-worker was of Vietnamese extraction who I am sure would have been ascertainable without undue effort having to have been spent in ascertaining his identity. The same reasoning applies to the female co-worker for that day. In my view, such witnesses would have been more valuable in support of her claim that either Ms. Lattanville or Ms. Fiore. If attempts had been made to have them in attendance and had such attempts failed then other considerations would apply. However, I as satisfied, on the evidence, that no attempts were made to have them appear at the hearing. In my view, since a good deal of the alleged touching and soliciting incidents did not occur as Ms. Purdy has claimed and described.
17Another aspect of the evidence where discrepancies occur is whether Mr. Alioe terminated the services of the complainant as a result of the story which she communicated to him on April 24, 1984 concerning Arthur and Bianco. This is a crucial aspect of the evidence because the result reached will, inter alia, impact on whether or not Mr. Alioe and Marwick Manufacturing have violated the Code.
18Ms. Purdy says that Mr. Alioe informed her that he was going to lay her off because of what had happened even though it was not her fault. She pleaded with him not to lay her off until she had met the requirements to obtain unemployment insurance benefits which would occur in two or three days.
19Mr. Alioe, on the other hand testified that she pleaded with him not to lay her off as she had no husband and had a child to support. On April 24 Mr. Alioe informed Ms. Mantovan that Ms. Purdy would begin working for Grosnor and leaving [sic] the employ of Marwick. Ms. Mantovan either began to prepare the record of employment (separation) form or had someone in the office prepare it showing the pertinent information about her term of employment, wages, etc. and stating the employer to be Marwick Manufacturing (Exhibit 3). The date showing the last day worked was, initially April 24. This date was subsequently changed to the 26th, while all of the other information on the document remained the same. Counsel for the Commission asked Ms. Mantovan why had she not made out two records of employment because the two companies were separate and distinct entities. Ms. Mantovan explained that she was surprised when Ms. Purdy appeared at the office, only a couple of days after the incident, seeking the form. As they were busy at the time, and because only two days had passed since the previous form had been made out they decided that they would simply change the date on the original form.
20One of the boxes on the form asks the reason for issuing the employment record to an employee. Ms. Mantovan indicated on the form that the reason was due to a shortage of work. This was not true. However, she explained that Ms. Purdy had requested that the reason be as stated because it would be easier for her to obtain unemployment insurance if she had been laid off. Ms. Mantovan stated that she complied with Ms. Purdy's request.
21I accept Mr. Alioe's testimony to the effect that his intentions were that Ms. Purdy would continue at Grosnor indefinitely. If his intention was to allow her to continue in work for just a couple of days so that she could obtain unemployment insurance benefits it seems strange that he would bother to transfer her to another company for such a short period of time. He instructed Ms. Mantovan to prepare the necessary documentation for the change in employment and that documentation was prepared. It was Ms. Mantovan's decision to change the employment record from the 24th, to the 26th, because of the short duration of lapsed time that occurred between the transfer and her ceasing to work. The evidence does not disclose that Mr. Alioe played any part in Ms. Mantovan's decision. I do not believe that he had some grandiose scheme in mind for taking such steps other than as he explained at the hearing which was to remove Ms. Purdy from the area where the men worked. Ms. Purdy on the other hand left her employment with Grosnor as soon as she had obtained sufficient entitlements to the unemployment insurance benefit plan. In my view, Mr. Alioe's version of what transpired is to be preferred over that of Ms. Purdy. She had decided that the work was boring and immediately upon acquiring sufficient unemployment insurance entitlements she left the company and did not reenter the employment market until her benefits ran out. Accordingly, the complaints against Mr. Alioe and Marwick Manufacturing are dismissed.
22I will now consider the complaints against Arthur and Bianco. It is obvious that something unusual occurred on April 23, 1984. The evidence clearly establishes certain events which occurred that day. Messrs. Arthur, Bianco and Ms. Purdy all agree that Ms. Purdy visited the back area of the plant where Arthur and Bianco worked that day. They also agree that while in the back area a book was shown and all three individuals saw it. Moreover, it is agreed that the book that was shown was a "dirty" book which I take to mean a pornographic book. The evidence also clearly establishes that Ms. Purdy became upset over something that happened that day. This was corroborated by Ms. Lattanville, Fiore and Mantovan. That is the extent of the evidence on which there is a great deal of common ground.
23In my view, what happened that day did not occur as described by Ms. Purdy nor, for that matter, as described by Messrs. Arthur or Bianco. But certain statements or comments exist in the testimony of all three witnesses which are sufficiently similar that permit me to reach certain conclusions on what actually happened on that day. While I do not accept the evidence of the three witnesses in their entirety I do accept certain portions of their testimony while excluding other portions.
24I accept Arthur and Bianco's evidence that it was Ms. Purdy who possessed the pornographic book and showed it to them. There is evidence that she had brought such material onto the premises in the past. Moreover, I accept Arthur and Bianco's evidence that she voluntarily visited the remote area in the back of the plant where they were working and showed them the book. She did this on her own as stated by them and not because she was invited to the remote area by them as stated by her.
25I accept Ms. Purdy's evidence that Mr. Arthur invited her to accompany him to the remote area of the plant while passing her work table because he wanted to show her something and that she did in face accompany him. I suggest that she had no concern about accompanying him because there had been no prior unwanted advances on their part toward her. Moreover, having visited the remote area earlier and having shown them the book it would only be natural that she was curious over what they may have had to show her. I also accept her evidence that Bianco dropped his pants in front of her in the remote area and it happened on this occasion when she accompanied Mr. Arthur as she has described it. He did this while out of view of the other workers in the plant. She stated that his underwear was yellow and I accept her evidence on this point. Ms. Lattanville and Fiore stated that they were able to see his underwear while he was sitting down in the lunch room and confirmed that it was yellow.
26I also accept Ms. Purdy's evidence that Mr. Bianco told her that he had won a bet that he and Mr. Arthur had made and that he told her this while he and Mr. Arthur were passing her work table. I agree with her interpretation that Mr. Bianco told her that the bet was in relation to the dropping of his pants. I was not informed that the three had any other ongoing relationship and it seems only reasonable that the statement was made in relation to the dropping of his pants. Any other explanation does not make any sense in light of what had transpired. However, the comment about the bet is not a violation of the Code. But it offers an explanation for the reason why Mr. Bianco dropped his pants.
27I have been troubled over the issue of whether the two men touched and solicited Ms. Purdy. Ms. Purdy says that they did whereas they deny it. I accept the fact that she became upset that day. Would the dropping of the pants be sufficient or would it require something more? I am suspicious that the two men did in fact touch and solicit her, not at her work table but while they were in the remote area at the time Mr. Bianco dropped his pants. By having shown them her pornographic book she initiated something which had grown out of hand. Her earlier visit with the book may have made them somewhat daring and the wager ensued. This was followed by the invitation to her to visit the remote area where the dropping of the pants took place. Surely, Ms. Purdy had started something that had gone beyond anything she had anticipated. It is quite possible that they did touch and solicit her as she has described because I question whether the dropping of the pants, standing alone, would have been sufficient to upset her. Nevertheless, I accept the evidence of Arthur and Bianco that they did not touch or solicit her. My reason for rejecting Ms. Purdy's evidence on this point is due to her testimony that it occurred at or near her work table which I do not accept for reasons stated earlier. Ms. Purdy stated that she had visited the remote are twice during the day but did not state that the touching and soliciting occurred while in the area although she was not hesitant to say that Mr. Bianco dropped his pants in that area. I cannot understand why she would not have informed me that those incidents took place in that location if, indeed, they did occur there. Therefore, I do not accept her evidence that they did not touch or solicit her.
28Accordingly, on the evidence before this Board, I find that the respondent, Don Bianco, did drop his pants in front of the complainant constituting sexual harassment and therefore was in breach of section 6(2) of the Ontario Human Rights Code, 1981, c. 53 which states:
Every person who is an employee has a 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.
29Also, the evidence establishes that Paul Arthur was a participant in this matter by getting the complainant to the remote area of the plant where Don Bianco could let down his pants without being seen by other employees. He was fully aware of what was to happen and his participation likewise places him in violation of section 6(2) of the Code for having infringed the complainant's rights under the Code.
30The complainant also claims that her rights under sections 4(1) and 8 have been infringed. Section 4(1) is concerned with discrimination and not harassment. This Board has found the respondents, Paul Arthur and Don Bianco, to have harassed the complainant because of her sex but discrimination and harassment have recently been interpreted as constituting two distinct matters in Janzen v. Platy Enterprises Ltd. (1987), 1986 CanLII 4055 (MB CA), 8 C.H.R.R. D/3831, 87 C.L.L.C. para. 17,014 (Man. C.A.) In that case the court was called upon to consider whether the amorous advances of a cook toward two waitresses constituted discrimination within the meaning of the Human Rights Act of Manitoba. The Manitoba Act did not have a section similar to section 6(2) of the Code so the complainant sought relief by claiming discrimination because of her sex. Mr. Justice Huband wrote, at D/3832 [of C.H.R.R.], 16,146 [of C.L.L.C.]:
I am amazed to think that sexual harassment has been equated with discrimination on the basis of sex. I think they are entirely different concepts.
and at D/3834 [of C.H.R.R.], 16,148 [of C.L.L.C.]:
The Act bars discrimination in certain spheres of human activity, but not all. If a man decides to hand out dollar bills on the street corner, he is entitled to give them to women rather than men, or to children rather than adults, because such discrimination on the basis of sex or age, happily, is not prohibited. But such conduct clearly constitutes discrimination.
Sexual harassment embraces an entirely different concept. The word "harass" is given several definitions in the Shorter Oxford English Dictionary, the most pertinent for our purposes being to harry, or to trouble or vex by repeated attacks. Sexual harassment involves vexing or troubling a person with respect to sexual matters such as repeated touching or making suggestions or threats.
Sexual harassment is not socially acceptable conduct. Depending on the nature of it, it might constitute a criminal offence or a civil wrong under the common law. But I cannot understand how it can be equated with sexual discrimination.
31Huband J.A. referred to several adjudications of earlier boards as well as prior court decisions that had held opposite views. He especially considered Bell v. Ladas and Flaming Steer Steak House (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155, 27 L.A.C. (2d) 227, a decision of Mr. O. B. Shime, Q.C., which was the first decision to consider a sexual harassment complaint under the Ontario Code. The provisions of the Code at that time were similar to that of the Manitoba Act where Mr. Shime equated harassment with discrimination. Huband J.A. disagreed with Mr. Shime and in light of Huband's comments one ought to reassess this matter. However, it is not significant in Ontario now because of section 6(2) of the Code. However, because the complainant had claimed a violation of section 4(1) which is concerned with discrimination I considered that I ought to refer to the Janzen decision. In any event, the Board does not find that section 4(1) has been breached by either Paul Arthur or Don Bianco in the instant situation. However, section 8 has been breached due to the finding with respect to section 6(2).
32The complaint respecting Mr. Alioe and Marwick Manufacturing could involve section 4(1) if it had been found that the complainant's termination from employment was due to this incident. But this has not been established on the evidence and so this aspect of the complaint is dismissed.
33The complainant also claims that her rights under section 6(3)(a) have been infringed which constitutes a violation of the Code. That section reads:
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.
The evidence does not establish that this section has been breached and I therefore dismiss the complaint as it relates to this issue.
34The complainant also claims that her rights under section 7 have been infringed which constitutes a violation of the Code. Section 7 reads:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceeding under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
This claim refers to Mr. Alioe and Marwick Manufacturing. For reasons stated in the decision I dismiss this claim.
35The complainant and the Commission seek the sum of $1000 in general damages for the loss of the right to equal treatment, injury and dignity and lost wages. I have found that the complainant did not lose her employment over this incident. Rather, she voluntarily left her employment a couple of days later.
36Moreover, I must consider the fact that the complainant was the initiator of the incident. While this does not excuse the respondents for their actions it does, in my view, go to the issue of damages. Conceivably the rights of the respondents were infringed when she showed them the pornographic book and I make no judgment on whether or not they were, but if they believed that their rights may have been infringed then their proper course of action would have been to file a complaint with the Commission. Instead, they decided to react in the manner in which they did. But two wrongs do not make a right. The Code is the response of the legislature to eliminate harassment in the workplace. It must be made crystal clear that such activity will not be tolerated.
37This Board of Inquiry, having found the respondents Paul Arthur and Don Bianco to be in breach of section 6(2) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended, in respect of the complainant, Ms. Brenda Purdy, orders that each of the respondents pay forthwith to the complainant, as general damages, the sum of $150.