Ontario Board of Inquiry
Danya Daccash
Complainant
v.
Paul Richards and Studio Ten:Ten
Respondents
December 1, 1988
November 21, 1992
Before:
Ontario Board of Inquiry, Maryka Omatsu
Appearances by:
Tony Griffin, Counsel for the Commission
Paul Richards, on his own behalf
SEXUAL HARASSMENT — sexual advances by a person in the position to confer a benefit — PROCEDURE — delay as abuse of process — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — procedural fairness in s. 7 (security of the person) — s. 11 (rights upon being charged with an offence) — EVIDENCE — similar fact evidence
Summary: The Board of Inquiry finds that Paul Richards made a sexual advance to Danya Daccash that he knew or ought to have known was unwelcome, contrary to section 7(3)(a) of the Ontario Human Rights Code.
Danya Daccash, who was not yet 18 years of age at the time, answered an ad in the Ottawa Citizen that sought "nude models for female lingerie." She made an appointment with Paul Richards to attend at his studio on July 19, 1988. Ms. Daccash went to the studio on the appointed day with her boyfriend, Matt O'Leary.
Mr. Richards showed Ms. Daccash and Mr. O'Leary nude photographs of his other models, and told them that Ms. Daccash could earn $80-$140 an hour as a nude model. He also indicated that he could help her compile her own model's dossier and that he could include her in his own portfolio of boudoir photos. Mr. Richards then asked Mr. O'Leary to leave so that a "test session" could be conducted. Mr O'Leary left, despite the protests of Ms. Daccash.
Mr. Richards then asked Ms. Daccash to undress and he placed a chair against the door. He took photographs of Ms. Daccash in the nude, and in the process he touched her breasts to make them erect and touched her vagina "to open it."
Ms. Daccash testified that she told Mr. Richards not to touch her breasts and that she tried to squirm away from him. She also testified that when Mr. Richards put the chair against the door she was afraid that he would sexually assault her and she decided to follow his instructions.
On cross-examination Mr. Richards gave evidence that complaints against him had been made to the police and to the Human Rights Commission by other women who had also answered his ads.
Section 7(3)(a) of the Ontario Human Rights Code states that:
every person has a right to be free from 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 Board of Inquiry concludes that by touching Ms. Daccash's breasts and vagina Mr. Richards made a sexual advance. The Board also finds that Mr. Richards was a mature man in a position of authority with a teenager who was alone, nude and lying on his bed. The Board of Inquiry finds that Mr. Richards was in the position to confer a benefit on Ms. Daccash because he had outlined to her the opportunities that he could make available to her if she was willing to model nude. Because he had been named in previous complaints he should have known that his advances were unwelcome.
The Board of Inquiry orders Paul Richards to pay $1,500 in general damages to Danya Daccash. It also orders both Mr. Richards and Ms. Daccash to return prints and negatives of the photographs taken on July 19, 1988 to the Commission to be shredded. Both terms of the order are to be fulfilled within ninety days.
Cases Cited
Bennett v. British Columbia (Securities Comm.) (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.): 10
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 56
Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.): 14
Douglas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 4657 (SK QB), 11 C.H.R.R. D/240 (Sask. Q.B.): 10
Ghosh v. Domglas Inc. (No. 1) (1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.): 12
Hyman v. Southam Murray Printing (No. 1) (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.): 7
Irwin Toy Ltd. v. Québec (Procureur général), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927: 9
Kodellas v. Saskatchewan (Human Rights Comm.) (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143, 10 C.H.R.R. D/6305 (Sask. C.A.): 10
Latif v. Ontario (Human Rights Comm.) (1992), 1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198 (Ont. Ct. (Gen.Div.)): 10
MacBain v. Canada (Human Rights Comm.) (1984), 1984 CanLII 5379 (FC), 5 C.H.R.R. D/2214 (F.C.T.D.): 19
MacBain v. Canada (Human Rights Comm.) (1985), 1985 CanLII 5548 (FCA), 6 C.H.R.R. D/3064 (F.C.A.): 19
Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.): 8
Nisbett v. Manitoba (Human Rights Comm.) (1992), 1992 CanLII 8662 (MB QB), 18 C.H.R.R. D/500 (Man. Q.B.): 10
R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, 45 D.L.R. (4th) 235: 12
Toronto (City) Board of Education v. Quereshi (No. 1) (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 (Ont. Bd.Inq.): 7
Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.): 56
Legislation Cited
Canada
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11
s. 7: 9
s. 11: 11
s. 11(b): 11
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 4, 43
s. 2(2): 45
s. 5(2): 45
s. 7(3)(a): 1, 4, 34, 43, 49
s. 7(3)(b): 4, 43
s. 9: 4, 43
s. 38(1): 4
s. 41(1): 52
s. 41(1)(a): 54
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
s. 9(1): 15
s. 15: 13
s. 23(1): 6
1. SUMMARY
1The Board of Inquiry ("Board") finds that Danya Daccash's rights under s. 6(3)(a) now s. 7(3)(a) of the Ontario Human Rights Code [R.S.O. 1990, c. H.19] ("Code") were infringed by Paul Richards. Section 7(3)(a) states:
7(3) Every person has a right to be free from
(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.
2On the facts, the Board finds that the respondent made a sexual advance contrary to s. 7(3)(a) of the Code, by touching the complainant's breasts and vagina while he was taking nude photographs of her in his studio/apartment. The Board further finds that the respondent held himself out to be in a position to: act as her agent should she decide to pose nude for amateur photographers, assist her in compiling her own portfolio and add her to his own portfolio of boudoir models. The Board also finds that the respondent ought reasonably to have known that his actions would be "unwelcome," given the particular circumstances of this case and the fact that complaints had previously been lodged against him by other women with the Ottawa police and the Commission.
3The Board orders both the respondent and the complainant to return to Commission counsel all forty-eight prints and negatives in their possession from the July 19, 1988, photo session and that they then be shredded. The Board orders the respondent to pay to the complainant $1,500 in damages for loss arising out of the right to be free from discrimination. Both terms of this order to be completed within ninety days of the date of this order.
2. INTRODUCTION
4The complaint was filed by Danya Daccash on December 1, 1988, regarding an incident that was alleged to have occurred on July 19, 1988 (Exhibit 2), contrary to ss. 1, 6(3)(a) now 7(3)(a), 6(3)(b) now 7(3)(b) and 8 now 9 of the Code. By letter of appointment dated June 16, 1992, I was appointed by the Minister of Citizenship, Elaine Ziemba, to act as a board of inquiry to hear and decide the above mentioned complaint pursuant to s. 38(1) of the Code (Exhibit 1). The hearing was commenced on July 3, 1992, by conference call. During the call, scheduled to discuss preliminary matters and to set a date for the hearing, the respondent requested that a day be slated for the argument of motions. Further, that if he was unsuccessful in his attempts to have the complaint dismissed, he would require sufficient time to prepare his defence. Accordingly, August 10, 1992, was set aside for the argument of motions and October 19–21 for the presentation of evidence and legal argument.
3. PRELIMINARY MATTERS
5The respondent, who was unrepresented by legal counsel, raised the following objections:
i) Abuse of Process
6The respondent raised the issue that almost four years had passed between the complaint's filing and its hearing. A board of inquiry's ("BOI") statutory authority to dismiss a complaint on the basis of delay is set out in s. 23(1) of the Statutory Powers Procedure Act [R.S.O. 1990, c. 22] ("SPPA") which states that:
A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
7Although s. 23(1) of the SPPA provides a tribunal with the jurisdiction to dismiss a complaint for reason of delay, the delay would have to be of such a nature as to constitute an abuse of its process. See Quereshi v. Central High School of Commerce(1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 at D/4529 (Ont. Bd.Inq.). The approach to the exercise of this discretion is set forth in Hyman v. Southam Murray Printing (1981), 1981 CanLII 4307 (ON HRT), 3 C.H.R.R. D/617 (Ont. Bd.Inq.), in which Professor McCamus held at D/621 [para. 5619], that:
[T]he board of inquiry should proceed to attempt to do so, [i.e. conduct the hearing] notwithstanding the passage of considerable time, unless the passage of time has made fulfilment of its task impossible.
Professor McCamus pointed out that adjudicators have required the party claiming unreasonable delay to establish some specific prejudice resulting from the delay. In the case before me, the respondent did not established [sic] that any significant prejudice had resulted from the delay which did occur.
8This Board is very concerned that a period of four years transpired before the complaint came before it; however, neither party was the cause of the delay and the respondent did not disclose any particular prejudice to himself that would outweigh the prejudice to the complainant should her complaint be dismissed. See Meissner v. 506756 Ontario Ltd. (1989), 1989 CanLII 9068 (ON HRT), 11 C.H.R.R. D/94 (Ont. Bd.Inq.).
ii) Section 7, Charter of Rights
9The respondent argued that his s. 7 Charter rights were denied because of the delay in the process. Section 7 of the Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11] provides that:
- Everyone has a right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 7 protects only the rights of individuals, not corporations, and accordingly would be available only to exclude the complaint against the respondent personally: see Irwin Toy Ltd. v. Quebec (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 at 1002–3 (S.C.C.), where the [sic] Dickson C.J. for the majority of the Supreme Court of Canada wrote, "In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter."
10In addition, it is the opinion of this Board that s. 7 of the Charter is of no assistance to the respondent personally. Although there is stigma associated with being a respondent in a sexual harassment complaint, I find that s. 7 of the Charter has no application to human rights proceedings, which are by their nature remedial and without penal sanctions. Neither the potential consequences, nor the nature of the proceedings jeopardize the liberty or security interests of the respondent. I have been greatly assisted by the reasons of Professor Dawson in her careful consideration of Re Kodellas and Saskatchewan Human Rights Commission (1989), 1989 CanLII 284 (SK CA), 60 D.L.R. (4th) 143 [10 C.H.R.R. D/6305] (Sask. C.A.), followed in Douglas v. Saskatchewan (Human Rights Comm.)(1989), 1989 CanLII 4657 (SK QB), 11 C.H.R.R. D/240 (Sask. Q.B.); and Nisbett v. Manitoba Human Rights Commission, [1992] M.J. No. 178, April 10, 1992 [now reported 1992 CanLII 8662 (MB QB), 18 C.H.R.R. D/500] (Man. Q.B.) and see Re Bennett v. B.C. Securities Commission (1991), 1991 CanLII 8199 (BC SC), 82 D.L.R. (4th) 129 (B.C.S.C.)Kodellas distinguished. Professor Dawson's decision appears in Latif v. O.H.R.C. (Ont. Ct. (Gen.Div.)) Appeal File No. 488/91 [1992 CanLII 14313 (ON CTGDDC), 17 C.H.R.R. D/198] (leave to appeal to the Ont. C.A. denied).
Moreover, in light of my findings on the question of abuse of process, I do not find that the respondent has been denied the principles of fundamental justice in proceeding with the complaint.
iii) Section 11, Charter of Rights
11The respondent relied on s. 11 of the Canadian Charter of Rights and Freedoms in support of his motion that the board dismiss the complaint. Section 11(b) of the Charter provides that, "a person charged with an offence has a right to be tried within a reasonable time."
12In my view, s. 11 is of no assistance to the respondent because of the remedial and compensatory nature of human rights proceedings. It is now settled law that s. 11 of the Charter does not apply to human rights proceedings. See Madam Justice Wilson speaking for the Supreme Court of Canada in Wigglesworth v. The Queen(1987), 1987 CanLII 41 (SCC), 45 D.L.R. (4th) 235 (S.C.C.) at 247:
It is my view that the narrower interpretation of s. 11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the state for public offenses involving punitive sanctions, ie, criminal, quasi-criminal and regulatory offenses, either federal or provincially enacted.
And see Ghosh v. Domglas Inc.(1991), 1991 CanLII 13173 (ON HRT), 16 C.H.R.R. D/16 (Ont. Bd.Inq.) in which Professor Hubbard reviews decisions on s. 7 and s. 11 of the Charter and comes to the same conclusions.
iv) Admissibility of Similar Fact Evidence
13The respondent raised as a preliminary matter whether the Board could consider similar fact evidence. Section 15(1) of the Statutory Powers Procedure Act permits a tribunal subjection to subsections (2) and (3) to
admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing, relevant to the subject-matter of the proceedings and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
14Boards of inquiry in proceedings under the Code have admitted circumstantial and similar fact evidence. The reason is because human rights violations and notably sexual harassment cases, often occur in private situations without witnesses and with conflicting evidence. However, in admitting similar fact evidence, a board is charged with the delicate task of balancing the probative value of the evidence against its prejudicial effect.
This Board held that it was entitled to admit similar fact evidence. This practice was confirmed in Commodore Business Machines Ltd. v. Olarte(1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.).
v) Request for Publicity Ban
15The respondent requested a publicity ban with respect to the proceedings. The Board considered s. 9(1) of the Statutory Powers Procedure Act which says:
9(1) A hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.
The Board then weighed the respondent's request for privacy against the Commission's duty to educate, and decided that there should be no ban on publicity.
vi) Request for the Complainant to Read the Complaint under Oath
16The respondent requested that the complainant be compelled to read her complaint under oath. He submitted that the complainant, when advised that she could be liable to a charge of perjury, would abandon her complaint. Although the complainant was willing to comply, this request was considered and denied at the outset of the proceedings. The complainant would be called on the first day of the hearing of evidence to testify under oath and be subject to cross-examination.
vii) Loss of Jurisdiction
17The respondent argued as a preliminary matter that the Board had lost jurisdiction over the complaint because in correspondence to the respondent, both the Minister of Citizenship and the Human Rights Commission had referred to sections of the 1981 Code and not the 1990 consolidation. This argument was not accepted by the Board. The respondent was aware of the allegations against him and of the proceedings that were to take place.
18The respondent made the argument that the Commission should not be allowed to reply [sic] on the reports of its staff employed pursuant to special funding received from the Ministry of Citizenship to reduce the backlog of cases (known as Task Force I and II). Specifically the respondent argued that his complaint had been investigated by Task Force I employees and their mandate expired on September 30, 1991. Consequently he argued that the reports of Task Force II staff, who took over the file, were of no effect. The Board finds that the Human Rights Commission could rely on the reports filed by its staff who worked on both Task Forces and that the Board subsequently did not lose jurisdiction over this complaint.
19The respondent further argued that, as the Board and the Commission both "report" to the same Minister, the Board had no jurisdiction to hear the case. The respondent inappropriately applied the MacBain decision, a decision of the Canadian Human Rights Commission, to the situation in Ontario under the Code (see MacBain v. Canadian Human Rights Comm. (1984), 1984 CanLII 5379 (FC), 5 C.H.R.R. D/2214 (F.C.T.D.) and 1985 CanLII 5548 (FCA), 6 C.H.R.R. D/3064 (F.C.A.)). The Board does not accept the respondent's submission on this point.
viii) Incorrect Complaint
20The respondent argued that the complaint be dismissed because the mailing address on the complaint form was not the address where the incident occurred and thus, he concluded that the events could not have taken place.
21The address at the top of the complaint form says "Name and Address of Individual/Organization Complained About." The "Particulars" of the complaint claim that the incident occurred in the "Respondent's studio." No specific location is mentioned Thus this Board does not find that the complainant alleged that the incident occurred at the address named at the top of the complaint form. The submission on this point is dismissed.
4. THE FACTS
22The respondent placed an advertisement in the Ottawa Citizen's Help Wanted Section, for "Nude models required for female lingerie." In response to the advertisement, the unemployed complainant telephoned the respondent and arranged an appointment for July 19, 1988. The complainant alleged that she advised the respondent that she did not want to pose nude. Both parties agreed that the respondent said that no underwear was to be worn under the lingerie. The complainant, when asked by the respondent if she was 18 did not tell the respondent that she would not be 18 for another week.
23The complainant attended with her live-in boyfriend, Matt O'Leary, then 19 years of age. The respondent's studio was in his apartment, on the eighth floor of an Ottawa apartment building. The respondent showed the couple nude photographs of his other models; told them that he could refer the complainant to his clientele of amateur photographers; that she could earn between $80–$140 hour as a nude model; that he could help her compile her own model's dossier and that he could include her photos in her own portfolio of boudoir photos. He said that he would take a series of photographs, six of which were the complainant's at no cost and that she would be liable to pay $1 for each remaining picture. Then the respondent, against the complainant's wishes, told O'Leary to leave, which he did. O'Leary waited for the complainant downstairs.
24The respondent told the complainant to undress. Due to her reticence, the complainant testified that she had to be told to do so twice. On exiting from the bathroom, the nude complainant saw that the respondent had placed a chair in front of his apartment door. The respondent explained that he had placed the chair there to prevent his landlord from unexpectedly entering. The complainant testified that she became afraid for her life. She believed that the respondent intended to sexually assault her. Out of fear, the complainant testified that she decided to obey the respondent's instructions.
25During the approximately 90–120 minute session, the respondent took five semi-nude and forty-three nude photos of the complainant (Exhibit 8, sealed at the request of the complainant). The respondent touched the complainant's breasts, "to get them erect" but he testified that when "she said to stop, I did." Although the Board agrees that there is "touching and touching" (the respondent's words), I do not agree with the respondent's analogy that his touching the complainant's breasts were "like moving two glasses together."
26The respondent instructed the complainant to masturbate "to get herself wet." She testified that she refused to do so. The complainant, in a ruse to get her boyfriend back into the apartment, told the respondent that if he wanted her "wet," he should "get Matt back up here."
27The complainant stated that she said nothing when the respondent touched her shoulders and breasts because she was afraid. She testified that she "squirmed" away from the respondent so that he "would get the message."
However, when the respondent touched her vagina, she told him to stop because the area was "sensitive." The respondent advised the complainant to go see a doctor about her problem. Although there was hearsay evidence from Matt O'Leary that the respondent had inserted his finger in the complainant's vagina, the respondent denied this. He testified however, that he had touched the complainant's vagina "to open it." The respondent took two close-up shots of the complainant's vaginal area.
28After the session was completed the complainant got dressed. It was the evidence of both parties that the complainant did not explicitly tell the respondent how she felt during the photo session; that she had not attempted to leave during the session and that she had not refused to participate in any of the photos. It was agreed that the respondent did not use any physical force or verbal threats.
The respondent instructed the complainant to return in a few weeks to review the photos and pick up her prints. The complainant then joined her boyfriend downstairs.
29It was the evidence of Matt O'Leary that immediately after the photo session, the complainant "looked very blank and shocked." Later that day, however, the complainant told her boyfriend what had taken place. He testified that she "was very upset" and "cried a lot." The complainant then telephoned the Ottawa Sexual Assault Support Centre ("SASC"). On the following day, July 20, 1988, accompanied by Cindy Dougherty, a worker at the SASC and her boyfriend, Matt O'Leary, the complainant filed a complaint of sexual assault with the Ottawa police against the respondent.
30Several weeks later, the complainant and O'Leary returned to the respondent's apartment. The complainant hoped that the respondent would give her back the prints and negatives; however, she did not make this request to the respondent. Instead he provided her with a set of forty-eight photographs on the understanding that she would pay him $42 dollars. The complainant has never paid this amount. Neither the complainant nor O'Leary told the respondent of the police complaint.
31Ms. Dougherty was called as a witness by the Commission. She testified that she continued to counsel the complainant for several months following the incident. She said that she has "treated one thousand women over the years" and that the complainant manifested the effects of "rape trauma syndrome" i.e., crying, shaking, fear, anger, insomnia, nightmares and difficulties in participating in a normal sexual relationship. The latter was the cause of the complainant and her boyfriend ending their relationship in June 1989.
32Ms. Dougherty, the complainant and O'Leary testified that they put up posters in the neighbourhood warning women of the respondent (Exhibit 11). Ms. Dougherty complained to the Ottawa Citizen regarding their printing the respondent's job advertisement. Ms. Dougherty was subsequently interviewed by the Citizen (Exhibit 12). On August 6, 1988, the Citizen ran an article, the headline of which read: "Man assaults woman who answered ad." The respondent was not named in the article.
33It was uncontested that the Ottawa police did not interview the respondent regarding the complainant's allegations and that several months later the police decided not to act. The respondent complained to the Ontario Press Council about the Citizen's article about him. Approximately a year later, on or about July 12, 1989, the Press Council ruled that the Citizen story and headline were unfair to the respondent. The Citizen said that "it printed the story after police had indicated that they were likely to lay charges . . . that the police had said that there had been previous complaints against the same photographer" but that it had "erred in not including the Respondent's comments in the article" (Exhibit 19).
The complainant admitted that she telephoned the respondent on January 6, 1989, and threatened his life.
i) The Witnesses
34The Commission called the complainant, her former boyfriend Matt O'Leary and Cindy Dougherty. I found O'Leary and Dougherty's evidence to be fully credible and they corroborated much of the complainant's evidence. In those instances where the complainant's evidence was uncorroborated and disputed by the respondent, I did not make a finding of fact for either party for e.g., on the issue of whether or not the respondent had sexually solicited the complainant (as opposed to making a sexual advance) (s. 7(3)(a)).
35The respondent originally submitted a list of witnesses but chose in the end to call none. The respondent was initially unwilling to testify under oath himself, until advised by the Board that his evidence would be given more weight if under oath and subject to cross-examination. The respondent then testified on his own behalf.
ii) Similar Fact Evidence
36The Commission did not call any direct evidence or witnesses to substantiate a pattern of past behaviour that would have established that the respondent knew or ought reasonably to have known that his actions were unwelcome, contrary to s. 7(3)(a) to [sic] the Code.
Instead, the Commission chose to enter this evidence through the respondent, who while under cross-examination described five complaints filed against him with the Ottawa police. He said that there were "two or three complaints made by women who had felt that he had gone beyond the bounds of propriety." He also admitted that he had been the subject of a human rights complaint which was settled when he returned the negatives and the photographs.
37It was the evidence of the respondent that he was totally unaware that the complainant had found his actions "unwelcome." He testified that he didn't "threaten" the complainant and that when the [sic] she said "no" he "backed off." He said that from the complainant's behaviour he assumed that she was "a little shy yet coquettish." He stated that he touched the complainant's vagina "to open it." But he defended his actions by distinguishing between "sexual touching and professional touching."
38Although the respondent stated that he was unaware of the inappropriateness of his behaviour, the fact that he has had at least five other allegations of a similar sort made against him, is evidence that the respondent ought reasonably to have known that his actions were "unwelcome."
39Although the complainant did not verbally communicate her unwillingness to accept the respondent's touches, it was both their evidence that she did instruct him on at least one occasion to stop touching her breasts. It was the respondent's evidence that he continued to touch her breasts unless she told him not to.
40The respondent did not deny that the complainant told him not to touch her vagina, "to open it up" (his words). The complainant testified that she refused to masturbate when told to do so by the respondent and "squirmed away" from him, in an attempt to express her unwillingness to be touched. Her behaviour must be considered in light of her age — not yet 18 at the time.
41Any indication that touching of this nature was unwelcome should have been sufficient, especially given that the respondent was a mature adult and the complainant a young girl still wearing braces. Even in the context of a nude photography session, the touching of genitalia and breasts was of such an intimate nature that any communication — verbal or physical — should have indicated to the respondent that his actions were unwelcome.
42The respondent testified that as the complainant "was incapable of taking verbal direction, he touched her." However, it was the evidence of Ms. Dougherty that when she had some "boudoir" photographs taken of herself, that she had not been touched by the photographer.
5. LEGAL ARGUMENT
43The complaint alleged discrimination on the following grounds:
i) contrary to s. 1:
- Every person has a right to equal treatment with respect to services . . . without discrimination because of sex.
ii) contrary to s. 7(3)(a):
7(3)(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;
iii) contrary to s. 7(3)(b):
7(3)(a) 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.
iv) contrary to s. 9
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
i) Services: Section 1
44The respondent had placed an advertisement in the Help Wanted column of the Ottawa Citizen and the complainant, unemployed at the time, had answered it, in hopes of getting employment. On arriving at the respondent's apartment, the parties had discussed the terms where by the respondent would assist the complainant in getting further work as a nude model.
This situation is clearly distinguishable from the scenario described by Ms. Dougherty who had also gone to a photographer of "boudoir photography" for a fee, to have some photos taken "for her personal use and not for employment."
45Accordingly, on the evidence, I find that there was no sex discrimination in the provision of services. The complainant went to the respondent's apartment to get employment as a photographer's model, not to have a service provided her. The relationship between the two parties was more correctly captured by s. 7(3)(a) than by s. 1.
Accordingly I find that I do not need to address the question of whether or not sex discrimination includes sexual harassment in the provision of services. [The Code has been amended to clearly prohibit sexual harassment in accommodation and employment but not services (ss. 2(2)(a) and 4(2).]
ii) Reprisal or Threat of Reprisal: Section 7(3)(b)
46No evidence was presented on this section of the Code and was not addressed in argument by Commission counsel.
iii) Section 7(3)(a)
47This section is composed of three components which must all be proven. They are:
i) a sexual solicitation or advance;
ii) made by a person who is able to grant a benefit; and
iii) the person in the position of power knows or ought reasonably to know that his actions are unwelcome.
48On the evidence I find that the respondent in touching the complainant's breasts and "in opening her vagina" committed a sexual advance. Although I agree with the respondent that there can be a difference between a professional and sexual touch, I find that the respondent's behaviour was inappropriate, even given his line of work, and constituted a sexual advance.
49Further I find that the respondent was a person able to grant a benefit to the complainant. The evidence was that the respondent had advised the complainant that if she was prepared to model in the nude, he would be able to refer her to amateur photographers, where she could earn upwards of $140/hour; that he would help her assemble a portfolio of her own and include her in his own collection of boudoir photos. The first session was termed a "test session." If the complainant had been prepared to model in the nude, the respondent testified that he would have been willing to be her agent. In fact, when the complainant returned several weeks later to pick up her prints, the respondent showed her a mouth piece that he had made for her to wear over her front teeth to cover her braces. On these facts, I find that the second component of s. 7(3)(a) has been proven.
50Finally, the respondent testified that he was unaware of the inappropriateness of his actions and did not believe his advances to be unwelcome. However, I find i) on the complainant's behaviour, ii) on the particular facts of this complaint: that as a mature man in a position of authority with a teenager who was alone, nude and lying on his bed, and iii) on the respondent's own evidence that he has been named in previous complaints of a similar nature, that the respondent should have known that his advances were unwelcome.
6. CONCLUSION
51I thus conclude that it has been established that the respondent, while in a position to confer a benefit on the complainant made a sexual advance to her, which he knew or ought reasonably to have known was unwelcome, contrary to s. 7(3)(a) of the Code.
7. REMEDY
52The remedial provisions of the Code applicable to the present case are set out in s. 40 [S.O. 1981, c. 53, now s. 41]:
40(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 8 by a party to the proceeding, the board may, by order,
(a) direct the party to do anything that, in the opinion of the board, that party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
i) Special Damages
53No submissions were received under this head of damages.
ii) General Damages
54Commission counsel requested:
i) general damages in the amount of $10,000 for the loss arising out of the right to be free from discrimination and the loss of personal dignity and self worth. He argued that interest at 10 percent be added to that award beginning from August 14, 1989, when the respondent received notice of the complaint until the date of the hearing.
ii) that pursuant to s. 41(1)(a) of the Code that the respondent be required to deposit at the Commission's Ottawa office, all photographs and negatives in his possession belonging to the complainant. The Commission would then turn these over to the complainant.
iii) that in all future photography sessions of women, that the respondent be required to have a third party present and that the respondent be ordered to put this clause in all his brochures, promotional and publicity materials.
55The respondent urged the Board to order:
i) general damages to himself in the amount of $10,000 because the complaint was "trivial, made in bad faith" and because it caused him "undue hardship."
ii) that the complainant, Ms. Dougherty and Mr. O'Leary be required to sign a cease and desist order against making adverse comments against the respondent and his business.
iii) that the Commission require both the complainant and the respondent to return all prints and negatives of the complainant to the Commission to be shredded by the Commission.
8. ORDER
56For the reasons given, it is hereby ordered that:
i) The respondent make restitution to the complainant in the amount of $1,500 for the loss of the right to be free from discrimination.
I was assisted by the decisions of Professor Cumming in Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170, and Torres v. Royalty Kitchenware Ltd.(1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858.
ii) both the complainant and the respondent return to Tony Griffin, Commission counsel, care of the Ottawa office of the Commission, all prints and negatives in their possession of the complainant taken on July 19, 1988, by the respondent and that Commission counsel be instructed to have all prints and negatives shredded.
iii) both terms of this order to be fulfilled by all parties within ninety days of the date of this order.