Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Kathleen Morano
Complainant
v.
Wilson Nuttall and The Company Garden Centre
Respondents
Place: Elliot Lake, Ontario
Before: Graeme H. McKechnie
Comm. Decision No.: 339
Appearances by:
Bella Fox, Counsel for Kathleen Morano and the Ontario Human Rights Commission
Wilson Nuttall, on his own behalf
SEXUAL HARASSMENT — sexual advances by employer — verbal abuse and denigration
Summary: The Board of Inquiry finds that Wilson Nuttall sexually harassed Kathleen Morano while she was employed by The Company Garden Centre and The Company Farm Limited.
The Board of Inquiry accepts Kathleen Morano's evidence that Mr. Nuttall harassed her both verbally and physically and made sexual advances to her. The Board of Inquiry also accepts Morano's evidence that she terminated her employment because of the harassment.
The Board orders the respondents to pay Kathleen Morano $994 in compensation for lost wages, $2500 in general damages, and $145.37 as interest.
In addition, the Board requires the respondents to report to the Ontario Human Rights Commission each time a female employee leaves employment over the next two years, providing names, addresses and reasons for termination. The respondents are also required to hold themselves open to monitoring by the Ontario Human Rights Commission for a two-year period.
Introduction
1This hearing dealt with a complaint (Exhibit No. 2) by Ms. Kathleen Morano of Elliot Lake, Ontario alleging discrimination in employment because of her sex against the respondents, Company Garden Centre and Mr. Wilson Nuttall, Director of the corporate respondent.
2Ms. Morano began as a cashier/salesperson/clerk at Company Garden Centre on April 2, 1986. She alleged that she suffered sexual harassment by Mr. Nuttall while she was an employee, that the sexual harassment continued throughout her employment and Mr. Nuttall's behaviour was a direct cause of her leaving the employment of the respondent on or about July 13, 1986.
3A hearing was scheduled for September 15, 1987 for the purpose of scheduling dates for the hearing of evidence and argument. Mr. Nuttall had not accepted the notice of such hearing and as a result, a second hearing was scheduled for Monday, October 5, 1987 in Sudbury, Ontario for the purpose of establishing dates for a hearing into the evidence and argument. Mr. Nuttall was served the notice of this hearing by an agent of the Ontario Provincial Police and attended. The hearing was then scheduled for December 3–4, 1987 in Elliot Lake, Ontario. The complainant, counsel for the Human Rights Commission and the respondent, Mr. Nuttall were present at that hearing. Mr. Nuttall was not represented by counsel at that hearing.
The Law
4The complainant alleges a breach of the Human Rights Code, 1981, R.S.O., 1981, c. 53 as amended. The relevant sections of the Code are as follows:
6.(2) 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.
6.(3) 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 reasonably to know that it is unwelcome.
The Evidence
5The complainant, Kathleen Morano, is now aged 29, is married and has a 12-year-old son. At the present time, she resides in Elliot Lake, Ontario and at the time of her complaint was also a resident of that city.
6In April 1986 the complainant obtained a job through the Canada Manpower Centre in Elliot Lake. The position for which she applied was located at Company Garden Centre and was posted in the Manpower office. Ms. Morano was interviewed by Ms. Cathy Caruso, who at all material times, was the manager at Company Garden Centre. The complainant was hired to work in the greenhouses and as a salesperson, clerk and cashier. Her rate of pay was the minimum wage and payroll records submitted in evidence (Exhibit No. 12) demonstrate that her rate of pay was $4.00 per hour.
7Company Garden Centre is registered with the Ministry of Consumer and Commercial Relations as a partnership/proprietorship; however, documents filed as Exhibit No. 1 show that the corporate name for Company Garden Centre is "The Company Farm Limited." The company includes within its business activities, sod farms, landscaping operations and buys and sells supplies which are used in landscaping.
8Ms. Morano testified that at the time she began work, there were other women working in the greenhouse and in addition Cathy Caruso and Jillian Marshall were also employed, the former as manager and the latter as bookkeeper. It was also her belief that three men worked in the landscaping and sodding part of the operation. Payroll records which were submitted in evidence (Exhibit No. 12) demonstrated that twelve persons including Ms. Caruso were employed during the summer and early fall of 1986. No records were submitted in respect to Ms. Marshall.
9The complainant began work on or about April 21, 1986 and she testified that soon after she began working, Mr. Nuttall would touch her when he spoke to her. She testified that he would pat her "on the behind" or "run his hand up and down my back" (Transcript, p. 7). She testified that these actions continued throughout her employment. Her response was to say, "Don't," or move away (Transcript, p. 7). The physical layout of the place of business was such that there were greenhouse areas and a trailer and the complainant testified that she would move to another section of the business property if Mr. Nuttall touched her.
10Ms. Morano testified that toward the end of April, she and her husband had purchased a home and were in the process of moving. Ms. Caruso offered the use of a pick-up truck and evidently the assistance of both herself and Mr. Nuttall. She testified that although there was no actual assistance from them with the move because of other obligations, Mr. Nuttall and Ms. Caruso did visit the house; however, the moving had been completed. The following day at work, Mr. Nuttall told Ms. Morano that she owed him a kiss for the assistance provided. Ms. Morano stated that she was married and her husband would not allow that. She then stated that Mr. Nuttall asked her if she told her husband everything and when she replied in the affirmative he stated that he wouldn't tell her husband and that he then kissed her on the lips. She testified that her response was to go into the greenhouse. The incident occurred in the trailer by the cash register which was at the front of the trailer.
11Ms. Morano stated that later on that same day Mr. Nuttall approached her shortly after she had purchased some flowers for her own home garden and indicated that if she was nice to him, she could have some other things as well. She testified that she took this to have sexual connotations and that she did not like it.
12In June 1986 when the weather was quite warm, Ms. Morano testified that she wore a tank top to work so that she would be a bit cooler. She has a tattoo below her right shoulder on her upper chest. Ms. Morano testified that Mr. Nuttall pulled down the sleeve of her tank top commenting that he wished to see if she had any more tattoos (Transcript, p. 8).
13Ms. Morano testified that the incident that led to her leaving her employment occurred on or about July 13, 1986. She testified that she had gone into the bathroom which was located in the trailer to blow her nose since she had a cold. She testified that she did not turn on the light but left the door open. Mr. Nuttall, who lives on the property, was barbecuing outside the trailer at the time and he came into the trailer and into the bathroom shutting the door. Ms. Morano testified that he ". . . put his hands behind me to pull me towards him and said words like, ”˜Oh, I've finally got you alone' or ”˜We're alone at last'" (Transcript, p. 9). Ms. Morano testified that she yelled "no" and then ran out. She quit the next day she came to work.
14The complainant testified that other female employees, Carol Massicotte and Marilyn Gravelle discussed their situations with her, and the same type of incidents had occurred between themselves and Mr. Nuttall. The complainant testified that she observed Mr. Nuttall patting Ms. Gravelle on the behind and touching her. Ms. Morano testified that she spoke to Cathy Caruso regarding the incidents and on the day that Ms. Morano quit her employment, Ms. Caruso told her that she had spoken with Mr. Nuttall.
15Ms. Caruso testified that she had purchased the Company Garden Centre from Mr. Nuttall in February 1987 and it is now renamed, Caruso Gardens. Prior to that purchase she was the manager at Company Garden Centre and was the manager from March 1986 until October 31, 1986 when she was laid off for the winter. She stated that at the time the complainant was hired, other employees were Marilyn Gravelle, Jillian Marshall and Carol Massicotte. She also indicated that there were some male employees working in the landscaping area of the business basically doing labouring work.
16Ms. Caruso testified that she and the three female employees had discussed the difficulties with Mr. Nuttall and that Ms. Morano had come to her approximately a month before the final incident had occurred. Ms. Caruso stated that she had told Mr. Nuttall that the female employees did not appreciate the treatment that he was giving them and that he should stop.
17Ms. Caruso testified that she was pleased with Ms. Morano's work and that if she had not quit, she would have continued to work for the company. Ms. Caruso testified that she made a commitment to Ms. Morano that she would have twenty weeks of work. She testified that she had asked Mr. Nuttall about this because the girls wanted to know if they would qualify for unemployment insurance benefits when their employment ended and she indicated that Mr. Nuttall stated that he had not seen any problem with this and so she went to the female employees and indicated that they would have their twenty weeks of work.
18Another employee, Wendy Sanders testified that she had been employed between April 1985 and July 1985. She testified that she had been hired by Mr. Wilson Nuttall and his son Bob and she was to be responsible for the greenhouse and nursery grounds outside. She testified that she voluntarily quit her job as a result of the difficulties she experienced with Mr. Nuttall. She testified that she got "little pats on the bum" (Transcript, p. 63) and she mentioned it to Mr. Nuttall's daughter-in-law and the latter had indicated that she would talk to Bob Nuttall.
19Ms. Sanders testified that in May 1985 Mr. Nuttall was working in the greenhouse and she was stocking shelves and talking with him and he asked if he could kiss her. She stated that her response was: "Are you serious," (Transcript, p. 64), and he stated that he was. Mr. Nuttall then kissed Ms. Sanders. Ms. Sanders testified that she spoke again to Mr. Nuttall's daughter-in-law who again indicated that she would talk to his son who would talk to Wilson Nuttall.
20Ms. Sanders testified that Mr. Nuttall asked her into the office in June 1985 and invited her to attend a conference. She testified that he stated that it was a conference of nursery people and that individuals from nurseries, garden centres and greenhouses got together for a weekend to have fun. She asked how much it would cost her and Mr. Nuttall indicated that if she was interested, it would be all expenses paid. He further stated that they would fly there in his plane and indicated [sic]: "You go there and he says you sleep with who you want, when you want. And he says when you come back to work you don't say anything about what went on" (Transcript, p. 64). The invitation was submitted in evidence (Exhibit No. 9) which Ms. Sanders had copied at the Manpower office where she went to discuss the matter. Ms. Sanders testified that she spoke to the daughter-in-law about the invitation. When she returned to work following this incident, Ms. Sanders testified that she told Bob Nuttall that she was leaving the job and that she was experiencing problems eating and sleeping and was extremely nervous and anxious.
21Ms. Sanders testified: ". . . he more or less said, well, you know I'll talk to my dad, he won't do it again" (Transcript, p. 65). Ms. Sanders testified that later on that day as she was getting ready to leave, Mr. Nuttall approached her indicating that he did not want her to leave the company, that she was a good worker and she stated that he said: "If it's about that little situation that happened on Sunday, he says, [sic] some people can take it and some people can't" (Transcript, p. 65). Ms. Sanders testified that she left her employment on or about July 5, 1985.
22Evidence was also received from Mr. Brian McKay, who is a counsellor at the Canada Manpower Center in Elliot Lake. He has been a counsellor for fourteen years. He testified that he had met Wendy Sanders on a number of occasions and recalled the circumstances in July 1985. He testified that she came into his office and told him of the difficulties she was experiencing with Mr. Nuttall, that Mr. Nuttall had kissed her and touched her constantly. She also showed him the copy of the invitation which was very suggestive. Mr. McKay testified that he also knew Kathleen Morano and he knew her prior to her marriage as Kathleen Turner.
23The respondent, Mr. Wilson Nuttall was not represented by counsel and gave evidence in the form of a series of statements. Mr. Nuttall's defence is that the stories of Ms. Morano are a fabrication and that the real issue is that Ms. Morano was upset that she was laid off and did not receive twenty weeks of employment so that she could qualify for unemployment insurance. Mr. Nuttall complained that he had been victimized by the Human Rights Commission and in an earlier judgment against him in the matter of a complaint by a Mrs. Robinson, he felt that he had been badly represented by counsel and the Human Rights Commission had acted improperly. In the instant situation, it was Mr. Nuttall's evidence that he had not guaranteed employment of twenty weeks and that employees had their work hours reduced in the summer months or had been laid off.
24Mr. Nuttall admitted that he had seen the tattoo described by Ms. Morano; however, he indicated that it was on her right arm and was partially covered by a sleeve. Photographic evidence was entered (Exhibit No. 8) which clearly showed the tattoo to be in the location described by Ms. Morano.
25Mr. Nuttall testified that in the matter of the invitation to the weekend which he gave to Ms. Sanders, that the invitation was in bad taste; however, that he himself and members of his family had attended the weekend and nothing of an improper nature had occurred.
26Mr. Nuttall testified: "It is not uncommon for one workman to put his hand on the shoulders or back of another workman to speak to him. With a female employee she makes a note of this and if she does not get her twenty weeks for U.I claims it was sexual harassment. And Human Rights believes her because she is female" (Transcript, p. 75).
27Mr. Nuttall also complained that he had not been informed with respect to the witnesses who would speak at the hearing and was therefore unable to appropriately prepare his case. Letters to Mr. Nuttall in regard to the hearing in this matter were submitted in evidence (Exhibits No. 13, 14), and a report with the analysis of the investigation findings by the Human Rights Commission was submitted in evidence (Exhibit No. 15). Mr. Nuttall testified that although he may have seen the items, with the exception of Exhibit No. 15, he had not thoroughly read them although he recognized them from his files.
28I have reviewed the evidence as reported in the transcripts very carefully and during the hearing took careful note of the demeanor of the witnesses. Based on those observations and review, I find that in the matter of the details of the alleged sexual harassment, Ms. Morano and Ms. Sanders were both credible witnesses. Neither was subjected to cross-examination by counsel since Mr. Nuttall represented himself at the hearing. However, the questions put to Ms. Morano by Mr. Nuttall did not cast any doubt in my mind as to the veracity of her evidence. In fact, Mr. Nuttall commented regarding the tattoo indicating that it had been on Ms. Morano's arm rather than her chest. From that line of questioning during cross-examination, the credibility of Ms. Morano regarding the tattoo was certainly upheld.
29In addition, the evidence of Ms. Sanders was credible and I find that Ms. Sanders was truthful in her testimony. She answered all questions in a straightforward manner although she was at times somewhat embarrassed. Mr. Nuttall admitted that the invitation was not in good taste and this lends further credibility to Ms. Sanders' testimony.
30With respect to the statements made by Mr. Nuttall regarding the difficulties he has experienced in his dealings with the Human Rights Commission, I found many of his answers to questions by Ms. Fox, counsel for the Human Rights Commission, to be evasive. For example, in the matter of a letter dated February 24, 1987 (Exhibit No. 14) which contained a summary of the Human Rights Commission Officer's report, upon which the Commission was to base its decision with respect to the complainant, Mr. Nuttall responded to a question from Ms. Fox asking whether he recalled receiving the letter as follows (Transcript, p. 84):
Mr. Nuttall: I don't recall reading it, can I have another look at it please? A person gets pretty uptight when you are having some person trying to extort money from you. You just don't . . .
Ms. Fox: Did you see that letter?
Mr. Nuttall: Okay.
Ms. Fox: And you received it?
Mr. Nuttall: Er . . . I've seen it in my files. This was the first time I've read it, but I've seen it in my files.
31As a result, I find that Mr. Nuttall's complaints regarding the procedures followed to be without foundation. In the matter of sexual harassment, testimony from Ms. Morano is to be preferred over the protestations of Mr. Nuttall. I find that Mr. Nuttall engaged in the actions against which Ms. Morano complained. I also find that the complainant told the truth when she recounted her reactions and feelings toward Mr. Nuttall's advances and that these advances and the attendant anxiety caused her to leave her employment.
Application of the Law to the Evidence
32I find first that it is appropriate to amend the complaint such that the respondents will be Mr. Wilson Nuttall, Company Garden Centre and The Company Farm Limited. Section 38(3) of the Human Rights Code, 1981 provides as follows:
A party may be added by the Board of Inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper.
Following this section, and reviewing the documents submitted as Exhibit No. 1, it is clear that The Company Farm Limited should be added as a respondent. Supporting this finding are the statements made on the record of employment forms submitted to Employment and Immigration Canada which were prepared when each of the employees terminated their employment with the respondent and the company. On each form which was submitted in evidence (Exhibit No. 12) the employer's name is shown as [The] Company Farm Limited. As a result, I find that the complaint should be amended to include The Company Farm Limited.
33I also find that Mr. Wilson Nuttall, Company Garden Centre and The Company Farm Limited, as respondents, violated section 6(2) and 6(3) of the Human Rights Code, 1981. A review of the law in this matter is set out in Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 beginning at paragraph 31514. I've also reviewed the law with respect to sexual harassment which is set out in Olarte et al. v. DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Ont. Bd. Inq.). Following the review of the law and applying it to the facts given in evidence in the instant situation, I find that Mr. Nuttall did engage in sexual harassment as defined in section 9(f) of the Human Rights Code, 1981 by: "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." Mr. Nuttall touched Ms. Morano constantly and was informed by Ms. Morano that these advances were unwelcome. In addition, Ms. Morano spoke with Ms. Caruso and Ms. Caruso testified that she spoke to Mr. Nuttall indicating that Ms. Morano among others did not appreciate the kind of treatment in which he was engaging.
34I also find that the conduct of Mr. Nuttall resulted in Ms. Morano ceasing her employment and that her cessation was the result of the discriminatory terms and conditions of her employment and that the harassment was both verbal and physical.
35I have reviewed the principles relating to damages in cases of sexual harassment as set forth in: Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 as reported in Olarte, supra, and have also reviewed the decision in Robinson v. Company Farm Ltd. (1984), 1984 CanLII 5038 (ON HRT), 5 C.H.R.R. D/2243 in which Mr. Nuttall was found in breach of paragraph 4(1)(b) of the Ontario Human Rights Code, 1970. This preceded the instant Human Rights Code, 1981 and in the earlier version, section 4(1)(b) and 4(1)(g) were held to mean that discrimination because of sex included sexual harassment. In the Human Rights Code, 1981, section 6(2) can cover many of the circumstances handled by section 4 of the previous Code. For a full discussion of this matter, see Cuff v. Gypsy Restaurant, supra. Having full regard for the principles relating to damage awards, an award of $2,500 for general damages for injured and hurt feelings of the complainant is made.
36In the matter of special damages for lost wages, the issue is the term of employment Ms. Morano could have expected had she not quit her employment as a result of the sexual harassment. Conflicting evidence was presented on this matter by Ms. Morano and Ms. Caruso, and the respondent, Mr. Nuttall. Mr. Nuttall stated that he did not make a guarantee of twenty weeks of employment whereas Ms. Caruso and Ms. Morano stated that he had guaranteed twenty weeks of employment. During his cross-examination of Ms. Caruso, Mr. Nuttall stated (Transcript, p. 59):
Mr. Nuttall: But I certainly don't under any circumstances recall guaranteeing any person any specific period of work. I've never done that in my life. And I knew the Garden Centre business fell apart after the first of July. I don't recall ever guaranteeing any person that unless it was a guarantee . . . was it a guarantee that if there was work we would give you twenty weeks of work?
Ms. Caruso: All you said was that you didn't see any problem in the girls getting their full twenty weeks in before they were laid off. That you figured that even if they got slowed down for July and August it would pick up for September and October anyway. So if they didn't get it before July they would get it afterwards. So . . . it really wasn't . . .
37The issue, in my opinion, is not that of a guarantee of a number of weeks of work, rather, it is what would be the normal expectation of work for Ms. Morano. I have reviewed the employment records submitted in evidence carefully and find that Ms. Morano ceased her employment on July 13 and two other employees who were working at the same time as Ms. Morano, C. Massicotte and M. Gravelle worked varying amounts of time until September. Ms. Massicotte worked for twelve weeks through the months of May, June, July, August and September 1986, and Ms. Gravelle worked for fifteen weeks through the months of April, May, June, July, August and September of 1986. Ms. Massicotte was a part-time employee and returned to school in September and the note on Ms. Gravelle's separation slip indicates that she was laid off due to lack of work. Ms. Caruso testified that she performed some additional work as a result of Ms. Morano leaving the employ of Mr. Nuttall and the company. A review of the employment record of Ms. Caruso demonstrates that she worked various hours throughout July, August, September and October and it was her evidence that these were hours that were additional to what was expected since, in Ms. Caruso's opinion, work was available and Ms. Morano had terminated her employment. A review of the employment records of Ms. Massicotte and Ms. Gravelle can serve as a guide as to how much work Ms. Morano could have expected had she not left her employment. I find that there was no absolute guarantee of work given to Ms. Morano and the appropriate benchmark is therefore not twenty weeks of employment but how much work one could have expected given the experience at the company over the summer months. A review of the employment records submitted in evidence (Exhibit No. 12) demonstrates that both Ms. Gravelle and Ms. Massicotte terminated their employment during the week ending September 6, 1986. Ms. Caruso continued in employment until the end of October; however, there would be no guarantee that Ms. Morano would have worked that long. Indeed, if the finding had been that a guarantee of twenty weeks was made, Ms. Morano would have terminated her employment in the week ending September 20, 1986, based on the evidence shown in the employee records. However, I do not find that an absolute guarantee of twenty weeks of work was given by Mr. Nuttall, according to Ms. Caruso's own testimony, supra. As a result, it would be unreasonable to find Ms. Morano would have continued in employment longer than either Ms. Gravelle or Ms. Massicotte and in that case, I would find that the complainant could have expected seven additional weeks of work. The appropriate wage can be calculated from the average wages during Ms. Morano's employment with the respondent which are calculated as $142 per week. As a result, damages for lost wages is in the amount of $994. I also find that interest should be awarded on these special damages and awarded from the time when the respondent was first notified of the complaint which was August 1986. The applicable Bank of Canada rate at that time was 9.75 percent. I calculate the amount of interest payable on the special damages to be $145.37.
38Counsel for the Human Rights Commission requested that since Mr. Nuttall and The Company Farm Limited were found in breach of the Code in 1984, that the Commission be allowed to monitor the practices of the respondent and in view of the preceding decision and the current circumstances, I find that a reasonable request.
Order
39This Board of Inquiry, having found the respondents, Wilson Nuttall, Company Garden Centre and The Company Farm Limited to be in breach of sections 6(2) and 6(3)(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53 in respect of the complainant, for the reasons given, the Board of Inquiry orders the following:
- The respondents are jointly and severally liable to pay forthwith to the complainant, as follows:
(a) as damages for lost wages, the sum of $994; and
(b) as general damages, the sum of $2,500; and
(c) the sum of $145.37 as interest.
The respondent, Wilson Nuttall, shall cease and desist forthwith the sexual harassment of female employees of the corporate respondent.
The respondent shall post in any operation or business that he has in Ontario, copies of the management declaration of the Ontario Human Rights Commission.
The respondent shall, each time a female employee leaves his employment in the two years following the decision, deliver in writing to the Ontario Human Rights Commission, the following information:
(a) the name and address of the employee;
(b) the period of her employment; and
(c) her employment record including the reasons for termination.
- The respondent shall allow the Ontario Human Rights Commission to monitor the employment practices of the respondent in any operation that is maintained in Ontario for a period of two years following this decision.