Green v. Safieh
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1981
Barbara Green and Greta Swan-Sheehan Complainants
v.
Butrus Peter Safieh
and
709637 Ontario Inc., carrying on business as City Auto Recyclers Respondents
Date of Complaint: 1985 Date of Decision: November 30, 1987 Place: Keswick, Ontario Before: W. Gunther Plaut Comm. Decision No.: 322
Appearances by: Steve Mason, Counsel for the Ontario Human Rights Commission and Barbara Green and Greta Swan-Sheehan Butrus Peter Safieh, on his own behalf and on behalf of City Auto Recyclers
SEXUAL HARASSMENT — sexual advances by employer — EVIDENCE — witnesses credibility
Summary: The Board of Inquiry finds that Butrus Peter Safieh sexually harassed Barbara Green and Greta Swan-Sheehan during the time they were employed by him at City Auto Recyclers.
The case turns on the credibility of the parties since Mr. Safieh denies that any sexual harassment occurred. The Board accepts the evidence of the complainants and their witnesses to the effect that Safieh engaged in a course of sexual harassment, including both physical and verbal incidents. Both women were subjected to repeated sexually suggestive and offensive remarks, advances, and unwanted touching. Mr. Safieh's behaviour caused the complainants emotional and nervous distress.
Peter Safieh and City Auto Recyclers are ordered to pay to Barbara Green $440 in compensation for lost wages, $3,000 in general damages, and $731 in interest. They are ordered to pay Greta Swan-Sheehan $1500 in general damages and $318.75 in interest.
In addition, the respondents are ordered to notify the Ontario Human Rights Commission each time a female employee leaves employment with City Auto, and to provide the Commission with her address and her reasons for leaving. This aspect of the order will be in effect for two years.1
General Outline of the Case
1At the beginning of the hearing the original complaint was amended, by consent, to include the proper name of the respondent company, which is "709637 Ontario Carrying on Business as City Auto Recyclers and Sales" (hereafter referred to as City Auto). Mr. Safieh is the co-owner of this business which he carries on in Keswick, Ontario.
2The complainants were engaged by him in early 1985 and left his employ later that year, in December. Shortly thereafter they complained to the Ontario Human Rights Commission (hereafter cited as OHRC) alleging sexual harassment and reprisal. The complaint was served on Mr. Safieh on April 7, 1986.
3In the preliminary telephone conference Mr. Eric Nadler participated as counsel for Mr. Safieh, but when the hearings opened Mr. Nadler was not present; he had been discharged by the respondent a week or so before. Mr. Safieh insisted that he could and would represent himself, and on that basis the hearings began.
4It was clear, however, that Mr. Safieh—while familiar with the allegations of the complaint—was unfamiliar with the nature of the hearing as well as with the law. He is fairly new in Canada, having settled here in 1980. As Chairman of the Board of Inquiry I therefore took it upon myself to assist Mr. Safieh in every way so that he could present his side as well as possible; I granted a special adjournment so that I could issue subpoenas to witnesses whose presence he deemed necessary to establish his case, while counsel for the Commission was helpful in providing Mr. Safieh with the necessary forms; and Mr. Safieh subsequently came to my office so that I could sign the documents.
Uncontradicted Facts
5Ms. Green has been living for eight years in common law relationship with Mr. Michael Kendrick. They have two children one of whom was the first in the family to work for City Auto. When the then bookkeeper-secretary Pat Thompson left in early 1985, Ms. Green's son recommended his mother to Mr. Safieh, whereupon she was employed. In turn, Ms. Green recommended her sister, Ms. Swan-Sheehan, to assist in the office as a bookkeeper, a job for which Ms. Green herself was not equipped.
6Subsequently, Mr. Kendrick was engaged by the firm as general manager, so that by the middle of the year the entire family was economically dependent on City Auto.
7Mr.Kendrick left the firm because he got a better job; and the sisters left in December without having new jobs lined up.
8Witnesses brought forward by the respondent testified that they had not observed any sexual harassment by Mr. Safieh, of the complainants or of anyone else on the premises.
Facts in Dispute
9The sisters claimed that they left because they had been constantly harassed sexually by Mr. Safieh; the latter sternly denied any harassment whatsoever and called testimony to the contrary "lies."
10Witnesses for the complainants supported the allegations either because they observed such harassment (direct evidence) or because they themselves had been subject to it (similar fact evidence). Witnesses for the respondent said they had never seen any evidence of sexual harassment and, instead, testified to fair and decent treatment by Mr. Safieh.
11The complainants claimed that their work hours were cut back because they did not yield to Mr. Safieh's importunements; the latter claimed that this reduction came about because of economic necessity.
The Law
12The complaints rely on provisions in the Ontario Human Rights Code, 1981 (hereafter called the Code), on sections 4(1) and 8 in a general way and on the sexual harassment clauses of section 6(3) specifically:
Every person has the 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 to know that it is unwelcome; or
(b) a reprisal or a 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.
13Sexual harassment is defined in section 9 of the Code where it states:
(f) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
14Mr. Safieh clearly was in a position of authority as envisaged by this section; he was a co-owner (with his wife) of City Auto and he was in complete, daily charge of its operation. He hired and fired his employees.
15The question therefore is one of evidence. As indicated, some witnesses, and particularly the complainants themselves, testified to a series of unwelcome physical as well as verbal occurrences which, if they did happen, were in contravention of the Code, for they were directed at the complainants. Other witnesses testified that, while they themselves had not witnessed any such acts vis-Ã -vis the complainants, they themselves had experienced unwelcome advances from Mr. Safieh. Theirs was not direct but similar fact evidence, and there is ample jurisprudence to justify its introduction when it relates directly to the issues of the case.
16It is in the nature of sexual harassment that it usually takes place away from other people's observation. In Graesser v. Porto (1983), 1983 CanLII 4717 (ON HRT), 4 C.H.R.R. D/1569, a judgment by Prof. Zemans, this aspect is clearly enunciated at D/1572:
When dealing with matters involving sexual harassment . . . one rarely encounters the situation where the offence or alleged offence takes place in the open, and therefore can be proven through eye witness testimony. That is, rarely will one sexually harass another in full public view. Rather, these events usually take place behind closed doors or with no witnesses present. Such being the case, if similar fact evidence were excluded, the trier of fact would be faced with having to decide an issue based solely on the evidence of the parties before him.
See also a more recent decision by Prof. Zemans, Piazza v. Airport Taxicab (Malton) Assn. (1985), 1985 CanLII 5242 (ON HRT), 7 C.H.R.R. D/3196 at D/3201 (on appeal, this section of the judgment was upheld, 1987 CanLII 8586 (ON HCJ), 9 C.H.R.R. D/4548 (S.C.O.))2
17Important similar fact evidence was rendered at this hearing, and I am satisfied that its nature met the conditions stipulated for such evidence in previous jurisprudence, especially as set out in Chairman Shime's decision in Bell v. Ladas and Flaming Steer Steak House Inc. (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155; and see Tarnopolsky and Pentney, Discrimination and the Law, 2d ed. (Toronto: R. DeBoo, 1985) 8–33 ff. Regarding Mr. Safieh's alleged verbal advances such "similar fact witnesses" testified to a modus operandi much like that alleged in the complaint.
18Similar fact evidence does not, of course, in itself constitute proof that the alleged incidents listed in the complaint took place. It may however help to confirm that the respondent acted according to certain patterns which elucidate the respondent's behaviour and character. Similar fact evidence also goes the other way, and Mr. Safieh too availed himself of it. He introduced witnesses who testified that his behaviour was at all times beyond reproach. In addition, the respondent himself vigorously denied that any of the evidence brought against him was based on fact.
19This denial extends to the records introduced by the Commission which purport to show that Mr. Safieh's business was in excellent shape and that therefore his claim of economic constraint (which was to explain the work reduction of the complainants) was without foundation.
The Evidence
20Since the respondent was without counsel it fell to the Chairman to make as sure as possible that the ends of justice were served and that Mr. Safieh received every opportunity to put his side of the case forward.
21The allegations in the complaint clearly establish the jurisdiction of this Board, and therefore the major question before it was one of credibility. One side claimed the occurrence of harassment, the other denied it. Except for Mr. Safieh's witnesses who claimed that such actions were not known to or experienced by them, and except for the matter of accounting to which I shall return later, the claims of the opposing parties could not both be true. If Mr. Safieh did what he was alleged to have done he breached the Code. If however his side of the story is believed he behaved lawfully.
22Positing the possibility that the latter was true and Mr. Safieh was indeed not guilty of any of the accusations levelled against him, then one would have to conclude that the complaints, by using the Code's provisions, constituted an elaborate plot to extract money from him. In that case there would have to be collusion of the most serious kind, involving not only the complainants themselves but also other witnesses. In his final argument the respondent made this point. It thus comes down to this: did I find the complainants and their witnesses more believable than the respondent himself?
23In arriving at answer I had to take into account that the major witnesses for the complainants were part of one family, and that most of the others had fairly close personal links to them. In addition, Keswick is a small community with, one may suppose, bonds of communal solidarity. In such a community Mr. Safieh and his family would be newcomers and outsiders. They were probably not fully conversant with Canadian ways when they first arrived. Mr. Safieh himself was deficient in his command of English and even now speaks it faultily and with a decided accent (although he made himself well understood at the hearings and in turn seemed to understand the proceedings in every way, asking for clarifications when he did not).
24In listening to the witnesses, including the complainants and the respondent, I attempted to assess as best I could both the content of the testimony and the manner in which it was given. The following is the substance of the witness-by-witness observations.
BARBARA GREEN
25Ms. Green is a woman in her forties. She began her work in February, and the harassment, she said, began after Pat Thompson, the previous secretary who had trained her, had left. Ms. Green testified:
Peter [Safieh] became very friendly. He was the kind of person who was always putting his arm around you, but he would rub your breast, or go to look at a necklace, and grab the chain between your breasts. He had on occasion asked me if I like to give blow-jobs . . . It was supposed to be accidental but it wasn't.
Q. All right. Can you describe any other incidents?
A. Yes, he would massage my back, kiss me on the neck . . .
Q. And do you recall how frequently this kind of incident would occur?
A. Just about every day. (Evidence, pp. 9–10)
Q. And how did you react when this kind of thing happened?
A. I was very upset, and I would tell Peter to leave me alone, or I would try to push his hand away . . .
Q. And didn't you try and do anything about the situation?
A. . . . I needed the job, and I had to work, and I hadn't worked in two years . . . I also got my sister a job there thinking I would be safer in the room with him, and that it wouldn't happen as often, you know, that he wouldn't come after me as often, but that didn't work either. (Evidence, pp. 12–13)
26Ms. Green further testified that the harassment happened in the back room where she and her boss had their two desks. On one occasion she moved her desk to the front room, to be with the sales people, but was forced to put the desk back where it had been. She accompanied Mr. Safieh on a trip to Toronto.
On the way back he started asking me whether I liked to give blow-jobs, and I told him to just shut up, he was sick. I said "Your friends are crazy."
Q. Were there any other kinds of comments, or remarks, that you can recall?
A. He would tell me he loved me, and he would ask me if I loved him. He would rub my skin, and tell me I had good skin . . . .He told me one time he had a dream of me, and what he had done to me sexually, and how well I had enjoyed it . . . (Evidence, p. 14)
27At this point in her testimony Ms. Green lost her composure and began to cry, and her testimony had to be interrupted until she could collect herself. She then told of the work conditions which she described in detail: mice running everywhere, a filthy bathroom which she had to clean until she refused, saying it wasn't her job. There were dogs in the office and she had to clean their excrements. Mr. Safieh said that if she didn't as asked, she was fired. The toilets didn't work and the water was not drinkable. (Evidence, p. 16)
28Ms. Green called government officials to inspect the place, and after they had come and ordered a thorough clean-up of the premises a special person (Darlene Payton) was engaged part-time. Thereafter things were briefly better but Mr. Safieh was very angry and his relationship to Ms. Green became worse.
29According to her and others' testimony, her experience was accompanied by severe health problems.
I ended up with a very bad nervous disorder which was coughing until I threw up, and I did that every morning from the time I got up until I went in to work . . . I ended up going to the doctor in July, and he told me it was nothing but nerves.
Q. And did you tell the doctor about what was going on at work?
A. No, I didn't . . .
Q. Have you had a vomiting problem since?
A. I still get nervous. It is just something that I started, and it kept up.
Q. So are you saying that you still have an occasional vomiting problem?
A. Yes, I do.
Q. Does it occur as frequently as it did during your employment at City Auto?
A. No, it doesn't. (Evidence, pp. 23–24)
However, no medical evidence was introduced either for her condition existing at the time or for her present state of health.
30Along with her nervous disorders went marital problems. She resigned in December and told Mr. Safieh the reasons.
Q. And you alleged that sexual harassment was a reason for your leaving?
A. Yes, it was. (Evidence, p. 21)
31A month later she had found other employment but with a drop in pay.
Her testimony was consistent and at times emotional.
GRETA SWAN-SHEEHAN
32She is the older sister of Barbara Green, past her fiftieth birthday. She started working for City Auto during the last week in March, about a month after her sister. She testified that:
. . . [I]n April Peter Safieh started in on me that I needed a man, and did I like to fuck, would I fuck him, would I give him a blow-job and did I like them. And it was constant harassment verbally until I left in December.
Q. And how often were these kinds of comments made?
A. Every day, day in, day out.
Q. And why did he ask you if you needed a man?
A. Because he knew I wasn't with my husband, I was alone.
Q. Well, how did you react to these comments?
A. I told Peter to clean his mouth up, clean his act up, to quit being so ignorant, and so rude, and to get rid of the filth . . . Every time Peter said something to me, I would say something back to him—to clean his act up. (Evidence, pp. 43–44)
Her testimony is supported by her sister Barbara:
Q. And did you observe your sister reacting to this in any way?
A. Yes, on one occasion she had slapped him, and she would tell him that he was sick, and to shut up.
Q. Did you observe your sister being upset in any way?
A. Yes, she used to get very upset . . . My sister coughed all the time she was at City Auto Recyclers. (Evidence, p. 25)
33Ms. Swan-Sheehan was very emotional when she described her own reaction.
Peter made me absolutely sick to my stomach, and you will never know what it was like to have to face that man day in and day out, and know what was going to happen, and you couldn't do anything about it. I have never felt so degraded in all my life . . . I coughed incessantly, and I coughed so much, and then I would start gagging, and throwing up, and this was at work. The only time I didn't cough was when Peter wasn't around . . . I was 126 lbs. when I started City, and I dropped to 100 lbs. when I left. (Evidence, pp. 58–59)
34She became especially emotional when cross-examined by Mr. Safieh and burst out at him:
You have one of the filthiest mouths I ever heard on a human being in my life, and you got great joy out of seeing the distress that you put myself and my sister into. (Evidence, p. 64)
It appeared to me that the spontaneity of her outbursts lent authenticity to her testimony.
OTHER TESTIMONY
35Complainants produced a series of witnesses who testified to Mr. Safieh's sexual preoccupation.
36Ms. Green's daughter Tracey, aged 17, said she saw him slip his hand into her mother's bosom (Evidence, p. 75). This single testimony of the complainant's daughter could not become a major factor in my decision.
37Ms. Darlene Payton, who was then dating Ms. Green's son and was brought in to clean up the premises, said that Mr. Safieh commented on her "erect breasts" (Evidence, p. 75). This was similar fact evidence which, I felt, spoke to the apparent sexual preoccupation of the respondent.
38Ms. Libba Guthrie, whose husband was working at City Auto, testified to Mr. Safieh's "filthy mouth." As long as there were no men around "nothing was sacred to him and he let women know what he wanted from them." She heard him talk that way to Ms. Green. She also told of an incident when she was visiting the office and reading a newspaper, how Mr. Safieh was suddenly all over her, "fondling with his hands, and slobbering and kissing." When Mr. Safieh cross-examined her she became extremely agitated and called him "a sick person." (Evidence, pp. 101–105)
I found her testimony extremely telling, though for the most part it too was similar fact evidence.
39Mr. Michael Kendrick, husband of Ms. Green, testified that while he never saw Mr. Safieh fondling his wife, the latter came home highly nervous so that he wanted her to quit. If she would not, he said, there would be problems at home or he would go out and punch Mr. Safieh, even if thereby he'd be risking assault charges. When asked whether Ms. Swan-Sheehan, who was then living with them, had complained about the same things as her sister, he answered that she had. Mr. Kendrick also testified that Mr. Safieh had asked him about his own sexual relations to his wife. (Evidence, pp. 118–125)
40The testimony was consistent in that, inter alia, it revealed the respondent's sexual fantasies. It was given in a matter-of-fact manner, without any attempt to dramatize the events.
41Ms. Lynda Ganderton, City Auto's bookkeeper in late 1986, gave similar fact evidence, and was in tears when she related three sexual encounters with Mr. Safieh. Her job experience also produced problems in her marriage, making her unwilling to have her husband approach her (Evidence, pp. 91–95).
42She was very credible and her emotion clearly authentic. It was, to me, especially telling as similar fact evidence, because by this time the OHRC was already investigating the present complaint.
43Ms. Karla McIntosh, a girlfriend of Ron Miller (who was working at the place during the time the complainants worked there) related suggestive sexual talk by Mr. Safieh even though she was at that time (early 1985) highly pregnant (Evidence, p. 111). I had no reason to doubt her testimony, which again was of the similar fact category.
MR. SAFIEH'S ARGUMENTS
44In his own testimony and in his cross-examination of the witnesses and the complainants Mr. Safieh made the following points:
That all testimony of his making sexual advances, either verbally or physically, was false. He did have a habit, he admitted, of touching people when he talked to them, but it would be on their shoulders and not anywhere else, and it would be done out of friendliness and good feeling, and not at all with sexual intent.
That, had he done any of the things alleged, the people involved (and especially the complainants) would have called the police, or complained then and there to the Ontario Human Rights Commission. The least they would have done was to protest loudly enough so they could be heard in the front office which was only some twenty to twenty-five feet away.
There was some dispute about the latter point, the complainants saying that most of the time the backroom office door was closed, making loud complaints inaudible to others. Besides, there was a loudspeaker in the front office by which order calls were relayed and which itself was quite noisy. They also pointed out that it was because of these circumstances that Ms. Green moved the desk to the front office and that in turn she was forced to have it moved back.
That, were the allegations true, the complainants would have quit their jobs much earlier. The latter countered by saying that there were few if any jobs to be had in Keswick and that therefore they carried on as long as they could, always hoping against hope that things would improve.
That the birthday party which the employees gave their employer was proof of the good feelings they harbored toward him. The complainants countered by repeating that they participated because they hoped that perhaps Mr. Safieh would see the light.
That the argument of the sisters, alleging that their cut in pay was a reprisal for their sexual non-cooperation, was demonstrably false. The sisters claimed that after being engaged in the beginning at $220 a week each, they were reduced to half pay, which action was said to be due to their unwillingness to submit to Mr. Safieh's sexual advances. Ms. Swan-Sheehan submitted balance sheets she had drawn up at the time which appeared to testify to a healthy business, with a net profit in August and September of 1985 of about $117,000 and $123,000, respectively (Exhibits No. 4 and 5). Mr. Safieh, however, countered by saying that the reduction was due to problems in his business and brought in Mr. Peter Westra, his accountant, to back him up. The latter submitted figures which showed a net loss of $882 for November 1985 (Exhibit No. 8).
45The discrepancy seems to stem from two different types of balance sheets. The former represents cash flow only, the latter takes the indebtedness of the corporation into consideration and does not deal with cash flow at all. Short of a more extended investigation of Mr. Safieh's business affairs in 1985 I am unable to decide whether the allegations of the complainants are founded in fact. Because of the insufficient data submitted to me I cannot consider the allegation of reprisal as proven. In this conclusion I am supported by Mr. Westra's statement that in his opinion the business required not even one single full-time secretary (Evidence, p. 217).
Witnesses Produced by the Respondent
46In addition to Mr. Westra, three other witnesses were called.
Ms. Ricki Penney. She is presently working at City Auto and has been there since April of 1987. She does not know the complainants. She has been treated properly and fairly by Mr. Safieh (Evidence, pp. 224–226).
47Mr. Ron Miller. He has been working at City Auto for seven years and knows the complainants. He testified that he had never heard Mr. Safieh saying any of the things he was alleged to have said. However, he admitted that while he was living at Ms. Green's home and while she was working at City Auto, she had "hollered" about Mr. Safieh and called him "a pervert," and that Ms. McIntosh had told him that Mr. Safieh asked her for a blow-job (Evidence, pp. 230, 234).
48Mr. Imad Safieh, the respondent's son, testified that he had never heard his father say an untoward word in the office.
Evaluation of Arguments and Testimony
49The Commission held that on the basis of the testimony before the Board both Mr. Safieh and the corporation he co-owns with his wife are liable for any consequences arising out of the perceived breach of the Code.
50The Code, in section 44(1), clearly establishes the liability of a corporation for the acts of officers, officials or other employees, but it specifically exempts sexual harassment (section 6) from this broad provision. Does this exemption apply in the case at hand, and is therefore only Mr. Safieh and not his corporation potentially liable?
51One of the reasons for the exemption of sexual harassment appears to be that the work place is often large and complex, and corporations should not be held broadly responsible for all multifarious interpersonal relations that might be construed as sexual harassment, for common experience shows how widespread they are on various levels.
52However, the liability of the corporation is restored when the offending party is the "directing mind" of the corporation (Olarte et al. v. DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705, aff'd. (1984), 1984 CanLII 2017 (ON HCJ), 6 C.H.R.R. D/2833, 14 D.L.R. (4th) 118 (Ont. Div. Ct.)). In such a case the "directing mind" represents the persona of the corporation itself, as if the two were one and the same, and the latter becomes liable because it itself is taken to have offended against the Code. This makes the exemption of section 6 in section 44(1) inapplicable, because it deals with actions of persons other than the corporation itself; but when such persons are deemed to be, as it were, identical with the corporation the exemption fails to apply.
53If this jurisprudence is our guide then how much more so must it be the case when the "directing mind" is also an owner of the corporation. Mr. Safieh was both executive head and co-owner and therefore fits that description (see ibid. at D/1745, paras. 14877 and 14878). Therefore, I agree with counsel that, if the complainants' case is upheld, both Mr. Safieh and the corporation he co-owns would be liable.
54Counsel then went on to summarize the testimony and concluded that it proved Mr. Safieh to have offended the Code.
Mr. Safieh had previously indicated that, while he had already compensated his lawyer for work done earlier, the latter had asked him $3,500 to $4,000 to appear at the hearings. That being too much for the respondent, he decided not to be represented by counsel. He went on to thank the Chairman for assisting him throughout the hearings:
And thank you for help[ing] me, you know, to explain everything, because I don't have my lawyer. (Evidence, p. 282)
55In stating his own case, Mr. Safieh denied again any sexual harassment, professed his good intentions and debated certain details, especially with regard to the moving of the desk and his profit-and-loss statements. He then turned to what I consider a crucial element in this case (and frequently in cases like this): the possibility that the complainants colluded in order to extract money from the respondents, a matter to which I have alluded to above.
I feel that these people, they want money from me. I [would] pay for the lawyer ten thousand dollar[s] if I am guilty; but I [am] not guilty. That's why I [do] not want to spend money for nothing. (ibid.)
56As indicated earlier, Keswick is a small town in Ontario where people would know each other well. Mr. Safieh and his family were newcomers in Keswick and were also new citizens who had come from an environment very different from Canada. Experience shows that the stranger in our midst is likely to occupy a somewhat precarious position and to be frequently exposed to obloquy and suspicion, all of which makes him more vulnerable than old-time members of the community.
57Moreover, in this case, both complainants and some of the key witnesses were related to each other, and others were linked to the complainants by acquaintance or social ties of one kind or another. In consequence, the Board had to evaluate not only their testimony as such but also their credibility as far as this was possible.
58However, in observing various witnesses closely I was struck by the authentic distress and anger which surfaced from time to time. Unless these were trained actors especially prepared for this occasion, no amount of collusion could prepare them for their show of emotion. I therefore concluded that their testimony was essentially true.
59For these reasons I judge that sexual harassment as alleged did in fact take place and that therefore respondents must be held liable for offending the provisions of the Code.
Remedies
60Counsel for the Commission asked for the following remedies:
Special damages; general damages; a letter of apology, posting of Code provisions in the respondent business; provisions for monitoring by the Commission; assurance by respondent that the complainants will be secure from future reprisal.
SPECIAL DAMAGES
61a. Ms. Green. I have already indicated that the reduction of wages is not conclusively proven as having been due to reprisal. I am, therefore left with establishing what loss of wages Ms. Green suffered upon feeling forced to leave her employ. She left City Auto on December 5, 1985 and was out of work for four weeks. She thereby sustained a loss of $440. In view of the fact that she was employed by City Auto for only ten months, a compensation for four weeks' pay appears to me a reasonable time and conforms to the limits imposed by the Supreme Court of Ontario (in reducing the amount awarded in Piazza v. Airport Taxicab, supra).
b. Ms. Swan-Sheehan. She claimed loss for wage reduction, which loss—as above—is denied. She made no claim for other special damages.
GENERAL DAMAGES
62In assessing these damages I concur with counsel that a number of factors be taken into consideration, such as the age of the complainants, the frequency and length of the harassment, and the psychological damage done. In arriving at specific sums, counsel cited the Commodore decision noted above as well as other jurisprudence. However, each case is different, and the Board has considerable leeway in this respect, within the upper limit of $10,000 awardable for mental anguish: section 40(1)(b).
a. Ms. Green. She unquestionably suffered emotional distress and loss of dignity, but her present mental and/or physical condition was not attested by independent medical evidence. She is awarded $3,000.
b. Ms. Swan-Sheehan. She too suffered such damage, but of a lesser nature. She is awarded $1,500.
63Interest charges are assessed from April 7, 1986 on, the day when the complaints were served on the respondents. In accordance with the rates set by the Registrar of the District Court, at 13 percent, Ms. Green is due an additional $731.00; and Ms. Swan-Sheehan an additional $318.75.
OTHER REMEDIES SOUGHT
64The Commission requested that copies of the preamble and sections 1 to 8 of the Code be posted on City Auto's premises, and I so order.
Request of an apology. I deem a letter of apology to be an empty gesture when the respondent denies culpability. The issuance of such a letter is therefore not ordered.
Reprisal. However, the respondents are asked to issue a clear statement to the complainants that any interaction that may be construed as a revenge or reprisal against them will not be undertaken. The Board will remain seized of this matter for a period of two years.
Monitoring. I order respondents, each time a female employee leaves their employ, to deliver in writing to the Ontario Human Rights Commission the name and address of such employee, the period of her employment, and the reasons for her termination. Also, if it so desires, the Commission shall for this purpose be entitled to seek access to the company's employment records. This aspect of my order, too, shall be in effect for two years and here too I shall remain seized of the matter.
Order
65The Ontario Human Rights Code having been offended by Mr. Safieh and City Auto Recyclers and Sales, they are severally and together ordered,
to pay the sum of $4,171 to Ms. Green, and of $1818.75 to Ms. Swan-Sheehan;
to post the Preamble and sections 1 to 8 of the Ontario Human Rights Code within a month of receiving this decision and to keep them in full view of the employees;
to supply the Commission with a termination record of female employees as set out above; and
to secure the complainants from reprisal as specified above.
66The payments are due on December 22, 1987; thereafter they will attract additional daily interest charges. Until the payments are made I shall remain seized of the matter, and similarly will I reserve jurisdiction for two years with regard to orders 2 to 4.