A. v. Quality Inn
1993-05-04
Ontario Board of Inquiry
"A", "B" and "C" Complainants
v.
Quality Inn and Angelo Camillo Respondents
Date of Complaints: April 20, 1990, April 26, 1990, and April 27, 1990
Date of Decision: May 4, 1993
Before: Ontario Board of Inquiry, Elizabeth Beckett
Comm. Decision No.: 516
Appearances by: "A", "B" and "C", on their own behalf Catherine Bickley, Counsel for the Ontario Human Rights Commission W.M. Denniston, for the Respondent Quality Inn Angelo Camillo, on his own behalf
SEXUAL HARASSMENT — poisoned work environment — verbal abuse and denigration — definition of sexual harassment and of vexatious — INTERPRETATION OF STATUTES — definition of "harassment" and "vexatious" — LIABILITY — vicarious liability — mitigation of effects of discrimination
PARTIES — name substituted by initials to protect privacy of complainant — BOARDS OF INQUIRY/TRIBUNALS — authority to order name of complainant not be published
Summary: The Board of Inquiry dismisses two complaints of sexual harassment against the Quality Inn in Woodstock, Ontario, and upholds a third complaint.
Ruling on a preliminary motion, the Board of Inquiry agrees to ban publication of the names of the complainants in this case. The Commission requests the publication ban for the protection of the complainants because of the nature of the complaints and the small size of the community. The Board of Inquiry agrees to the publication ban because it will not prejudice the respondents, nor will it detract from the fulfillment of the educational goals of the Ontario Human Rights Code.
Two complainants allege that they were sexually harassed by a new manager at the Quality Inn, Angelo Camillo, when he told a story about a previous employee who proved to him that she was menstruating and needed to leave work by lifting her skirt and showing her undergarment and thighs covered in blood. Mr. Camillo also told another story about delivering a room service order to a woman who came to her door naked. In addition, the complainants allege that Mr. Camillo told other stories and made other comments that were sexual in nature.
However, the Board of Inquiry finds that the telling of these stories did not constitute harassment. The stories were told in the presence of other employees as well as the complainants, and they were addressed to no one in particular. While they were "gross" they were not accompanied by suggestive leering or more personal suggestions of a sexual nature.
The Board of Inquiry finds that the third complainant, "C", was sexually harassed. "C" spent the night at the Inn with two different men during the time she was employed. Mr. Camillo learned of this and told other people that she was "spreading her legs" for money. This was untrue. When "C" confronted Mr. Camillo and warned him that she would take legal action if he continued to spread this lie, he nonetheless persisted, creating a poisoned atmosphere for "C" in the workplace. "C" was advised to take time off work by her doctor because of the stress that Mr. Camillo's treatment caused her. A few months after she returned to work, she resigned.
The Board of Inquiry dismisses the complaints of "A" and "B" and upholds the complaint of "C". It awards "C" her lost wages in the amount of $4,500 and general damages of $2,000. It also orders that interest be paid on the award.
Cases Cited
A. v. Ruby's Food Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394 (Ont. Bd.Inq.): 3, 60
B. v. Acton Restaurant (November 8, 1989), (Ont. Bd.Inq.) [unreported]: 3
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 56, 64
Carere v. Family & Children's Services of Guelph and Wellington County (No. 1) (1992), 1992 CanLII 14296 (ON HRT), 18 C.H.R.R. D/240 (Ont. Bd.Inq.): 5
Commodore Business Machines Ltd. v. Olarte (No. 2) (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Ont. Bd.Inq.): 56
Coutroubis v. Sklavos Printing (1981), 1981 CanLII 4303 (ON HRT), 2 C.H.R.R. D/457 (Ont. Bd.Inq.): 38
Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (S.C.C.): 38
Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 38
Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd.Inq.): 64
Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 38
Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd. (1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311 (Ont. Bd.Inq.): 38
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 1, 5
s. 5(1): 36
s. 7(2): 36
s. 10(1): 37
s. 44(1): 56
Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 23(1): 3
1This inquiry concerns complaints by "A", "C" and "B" against the Quality Inn and its board of directors and an employee of Quality Inn named Angelo Camillo. The complainants, in similar, although not identical, statements to the Human Rights Commission in April 1990, alleged discrimination in employment because of sex and harassment because of sex contrary to the Human Rights Code, 1981 [S.O. 1981, c. 53] of Ontario.
ORDER TO BAN PUBLICATION OF NAMES OF COMPLAINANTS
2During the conference call to set a date for the hearing, counsel for the Commission informed the Board that she would be making a preliminary motion asking that the Board make an order that the names of the complainants not be published in the media. The respondents indicated that they would oppose this motion. On the first day of hearings, January 4, 1993, the argument was made by Ms. Bickley, and responded to by Mr. Denniston and Mr. Camillo. After a recess during which this Board considered the matter and reviewed authorities submitted, the Board rendered its decision.
Decision on Preliminary Motion
3This Board has been asked by counsel for the Commission to exercise its powers under s. 23(1) of the Statutory Powers Procedure Act [S.O. 1980, c. 484] to make a ruling banning the publication of the complainants' identity. Counsel makes this request to protect the privacy of the complainants and to protect the complainants from further discrimination by employers because of the complainants being labelled as "troublemakers." Counsel argued that this ruling be put into the category of exceptional cases where such rulings have been sought and granted in the past: specifically B. v. Acton Restaurant, Ontario Board of Inquiry decision November 8, 1989; and A. v. Ruby's Food Services Ltd., Ontario Board of Inquiry, August 1992 [reported 1992 CanLII 14245 (ON HRT), 16 C.H.R.R. D/394]. Counsel seeks to put this case into that category because of the nature of the complaint and the smallness of the community (Woodstock) in which these incidents occurred.
4Counsel for the respondent corporation is not requesting that its name not be published. Mr. Denniston admitted that the Quality Inn would not be prejudiced by the requested ruling; however he argued that from a "justice perspective" such a ruling should be avoided.
Mr. Camillo submitted that he was opposed to the request for this ban on publication, but in the alternative felt that if such protection was granted to the complainants that it should also be extended to him.
5The case law canvassed in Carere v. Family & Children's Services of Guelph, Ontario Board of Inquiry, August 1992 [reported 1992 CanLII 14296 (ON HRT), 18 C.H.R.R. D/240] makes it clear that openness is required to meet the goals of the Human Rights Code. In that case a request for an in camera Board was refused. On the other hand, that case and the two others cited above were more sanguine on the issue of a publication ban.
6The rationale for these rulings appears to be focused on two considerations: the lack of prejudice to the parties resulting from such a ban and the recognition that the goals of public education articulated in the Human Rights Code could be met without specifically identifying parties to the proceedings. Both of these rationales are applicable in the case before this Board.
7Counsel for the Commission stated that the complainants in this case have informed her that publication of their names in this small community would lead to embarrassment and perhaps to more serious ramifications when they seek future employment.
8Our system of justice requires openness of procedure so that the public can know that justice is done and so that the parties involved can know the case against them and meet it squarely. Neither of these goals is at risk if this Board makes the order requested by Commission counsel.
9It may also be the case that by protecting the privacy of the individuals in small communities the wider goals of the Human Rights Code will be served. People who perceive themselves to be victims of discrimination or harassment will then be prepared to come forward to have such matters addressed in the forum set up for that purpose. Therefore, it is ordered that the complainants' names not be published, nor details sufficient to identify them to the general public. This in no way limits the press from attending at these hearings nor reporting on them subject to the above limitation.
INTRODUCTION
10The respondent corporation was represented at this hearing by Mr. Denniston, the personnel manager of the corporation named in the complaint. He is not a lawyer. Mr. Camillo represented himself without the benefit of professional assistance. Although this fact led to some difficulties during the hearing, every effort was made by the Board to treat the respondents fairly and to apprise them of their legal rights. Counsel for the Commission carried the case on behalf of the complainants and was very cooperative in dealing with the respondents before the Board.
11The facts that led to this complaint are as follows. In late 1989 the management of the Quality Inn fired their Food and Beverage Manager due to a number of unsatisfactory occurrences and replaced him with Angelo Camillo, the respondent in this matter. Mr. Camillo was hired as Food and Beverage Manager but was promoted rather quickly to the position of General Manager. The evidence of several witnesses painted a picture of the workplace prior to the arrival of Mr. Camillo. It was not well managed: staff was not properly supervised and the lack of profit generated by the Inn was of real concern to the investors. The new manager was hired to redress these concerns. He is a man of considerable experience and education in the field of hotel and food service. His mandate from the board of the Quality Inn was to make changes necessary to turn the situation around.
"A' "S EVIDENCE
12"A" began her employment with the Quality Inn in the summer of 1988 as a hostess in the dining room, and in the fall of 1989 she became a bartender. She had no experience bartending and learned the necessary skills by on-the-job-training from the then Food and Beverage Manager and fellow employees. She continued in that position until she left her employment with the Quality Inn in January 1991. She testified that until December 1989 or January 1990 she enjoyed her job and did not receive any criticism of her work.
13When Mr. Camillo was hired, "A' "s initial response was positive. She testified: "When I first met Angelo Camillo I respected him, I thought he was helping me learn more about my job. He taught me some history about different liquors and wine and I appreciated that very much, and he showed us different ways to do things which was improving the look of the place and I thought he was a very good manager (Vol. 1, p. 82, transcript). This positive feeling began to change quite early in Mr. Camillo's tenure. The witness testified that she felt harassed when Mr. Camillo told stories that had a sexual component.
Menstruation Story
14One day, in the dining room area, in the presence of several employees, both male and female, Mr. Camillo told of an incident that occurred when he was the manager of a German cafe. A female employee asked to go home because she was having her period. When her story was challenged by Mr. Camillo, she lifted her skirt and displayed her undergarment and thighs covered in blood. When "A" was asked what her response to the relating of this incident was, she said: "I said, ”˜Gross' and I just thought ”˜God, I wonder why he wanted to share that with us?' " (ibid., p. 85). Her evidence was that this story came out of nowhere; that a group of employees were standing around chatting and Mr. Camillo came up and told the story.
The Nude Story
15The second incident described by this witness was that one day when she was standing by the salad bar and Mr. Camillo came up to her and said, "Are you nude under your clothes?" She testified that she thought, "What did he ask me that for?" (ibid., p. 85).
Comments Re "C"
16"A" gave evidence of a conversation she had with Mr. Camillo concerning another employee who is a complainant in this matter. During this conversation he said: "Did you know that "C" was opening her legs for a living?" When "A" challenged him on this he allegedly replied: "Don't tell me, I know, I seen it. I see her come in and out of the hotel in the back. She is sleeping with the customers" (ibid., p. 97). "A" said she felt sick about this conversation and felt that he was probably saying the same thing about her. She further testified that he made other allusions to "C" indicating that he believed her to be sleeping with men for money.
The Return From Sick Leave Incident
17The witness told of an incident that occurred after she had taken some time off work because she had a virus. When she returned to work she was involved in a conversation with Mr. Camillo and another male employee. During this conversation Mr. Camillo allegedly said: "When I was your age I was a bartender and I caught the same virus you had and I was sleeping with three women and sexually satisfying them and they were giving me medicines of some sort to make me better and I didn't take a day off work" (ibid., p. 99). In response to this the witness simply left the conversation.
The Room Service Incident
18Mr. Camillo told a group of employees that room service was a matter that had to be handled carefully by employees, especially female employees. He recounted an encounter he had as a young bartender. He had been asked to bring drinks to a certain room. When he arrived there the door to the room was opened by a naked woman who indicated that one of the drinks was for her and the other was for him. He indicated [that] the woman propositioned him. The witness testified that she was embarrassed by the telling of this story.
In addition to the specific incidents above the witness testified that there were other comments of a sexual nature made on numerous occasions but she could not specifically recall them. There was also talk of mafia and guns. This part of the testimony was very vague.
"C' "S EVIDENCE
19"C" began her work at the Quality Inn in December 1985 as a waitress, and in the spring of 1988 moved to the bar. Like "A" she had no training as a bartender and was trained on the job by the other staff. When Mr. Camillo started at the Inn she liked him: "When he first came to the Quality Inn I felt he was very sincere, I felt he had a lot of good ideas for the hotel, new fresh ideas, he was going to make a lot of changes that I felt were needed and that would help the hotel" (Vol. 2, p. 5, transcript). The bloom was soon off the rose however. In December 1989 Mr. Camillo indicated to "C" that he was considering her for a sales position, and in the course of this conversation he told her that he knew she was sleeping with a hotel guest and advised her that he personally had no problem with this as long as she registered at the front desk so that there could be no suggestion of her soliciting. "C" took great offence at the use of the term soliciting and told Mr. Camillo that this person was a friend of hers and it was not a financial arrangement. In response to this she and her friend apparently made other arrangements and did not again stay at the hotel. "C" did testify that she stayed at the Inn again with another man whom she eventually married.
20These incidents have relevance to this inquiry because "C" was told by "B" that she did not get a sales job because she "was sleeping with more than one hotel guest and I (i.e., "C") would spread my legs for a living" (ibid., p. 10). Mr. Camillo made a comment to her about "finding a sugar daddy." "C" was also informed by another co-worker that Mr. Camillo had told this worker that "C" was spreading her legs for a living. In yet another incident "C" was told by a different co-worker that one night when the co-worker was having dinner with Mr. Camillo and Mr. Camillo's wife, and "C" passed by, Mr. Camillo said: "There goes the girl that likes to lay in the sand and spread her legs for all the boys." This comment was not heard by "C" at the time, but was repeated to her by the employee who was at the dinner table.
21After this incident was recounted to her "C" approached Mr. Camillo and confronted him with these stories. He at first denied that he had made the remarks, but "C" said that she believed the people who told her because they would have no reason to make them up, and further, if this did not stop, she would go to a lawyer. Camillo then apologized and said that would not be necessary. The witness testified that after this, she began to get reprimands that she did not feel were warranted and felt harassed by this.
22"C" eventually filed a union grievance, and in April 1990 filed a complaint with the Human Rights Commission and sought medical assistance for the upset she was feeling regarding the situation at work. She then took a leave of absence that lasted some weeks and returned to work in late August. She eventually quit her job in January 1991.
"B' "S EVIDENCE
23"B" started at the Quality Inn in May 1986 and was still employed there at the time of the hearing. She started as waitress and that is her current position. As with the other witnesses she had glowing things to say about Mr. Camillo: "I thought he was nice; I thought he was sent from heaven because he seemed knowledgeable about our employment . . . he showed us different things, how to make it look nicer . . ." (ibid., p. 145). This opinion changed because of things Mr. Camillo said to her about herself and about other co-workers.
24"B" was the union steward and, in that capacity, she was informed of certain decisions regarding staffing. In early 1990 Mr. Camillo informed her that "C" did not get a sales job because she was sleeping with more than one hotel guest. "B" testified that this allegation concerning "C" upset her very much and she informed "C" of the conversation. When she told "C" about it, "C" was also very upset.
Menstruation Story
25"B" related the incident about the young woman requesting time off work because she was having her period. It was the same incident as told earlier by "A". "B" testified that her reaction to this story was to say that it was "sick or it was gross or something like that."
Diets
26"B" testified that on more than one occasion Mr. Camillo said that she should go on a diet. "One day he came out from the kitchen and he said to me . . . ”˜Me and you and you,' which was myself, Mr. Camillo and Ellen Paciga, that tomorrow or the next day or whatever we were going to be going on diets" (ibid., p. 149). "B" testified that this conversation embarrassed her.
Think Like an Italian
27There were no other comments made about her appearance but, she testified that one day in conversation, Mr. Camillo said: "I was Italian and I should think like one." When asked by counsel for the Commission what she took this to mean she said: "To me it meant that I should — as a woman — I should be quiet and serve men, like wait on men hand and foot type thing" (Vol. 2, p. 150).
Nude Under There
28This witness gave testimony regarding the incident of "A" being asked if she "was nude under there," which she overheard, and which has been related by "A". The testimony of "B" did not differ in any substantial way from that related by "A".
General
29"B" testified that comments were made by Mr. Camillo regarding the mafia, guns and the type of women he liked. She testified that these comments would be made in general conversation with a number of staff present.
30In her position as union steward "B" sought the advice of the union representative and filed a grievance. The union representative suggested the women also take their concerns to the Human Rights Commission. Apparently the grievance was lost. There was never any clear evidence concerning this grievance hearing. The board of the hotel took some action after this hearing, which will be outlined below.
31"B" testified that as union steward she was aware of the many warnings, both verbal and written, that "C" received after confronting Mr. Camillo about his allegations of her sexual behaviour. In her opinion these warnings were severe, given the transgressions they represented.
MR. CAMILLO'S EVIDENCE
32Mr. Camillo did not actually deny much of the testimony given by the complainants; rather he sought to put it into a different context. He stated that when relating the incident of the menstruation story, he did so in the context of a discussion of absenteeism and the difficulty managers have in sorting out truth from fiction. It was his evidence that the story of going to the hotel room and finding the woman naked was told in the context of explaining to the staff the hazards of room service. The "nude under there" incident arose because Mr. Camillo had established a dress code requiring waitresses to wear stockings. He testified he asked: "Are you wearing nude stockings or nothing?" He did not deny that he believed "C" was sleeping with hotel guests, which in fact she was doing. He was not aware until he spoke to her that she knew these men. He felt it was a legitimate concern of his as a manager that the bar staff not fraternize with male patrons in a way that could raise issues for the hotel regarding soliciting behaviour. He felt it was legitimate that he request that people sleeping in the hotel register at the front desk. He did not deny that he made comments about dieting to "B", but felt it was in a non-threatening, teasing way. Mr. Camillo did deny that he had ever said anything about satisfying three women while he was sick.
33Mr. Camillo testified that he was forced to make a number of changes at the hotel, and this involved laying off some part-time staff and making some demands on staff that were new to them. He agreed that perhaps changes were made too quickly. He felt he responded well to staff concerns and tried to meet the needs of the board of the Inn while instituting some positive changes for the staff. He felt that there was a vendetta atmosphere created by some staff who were out to cause him trouble and that they succeeded. He indicated through his own testimony and through his cross-examination that he believed that this was in part orchestrated by the union representative who felt that the work force was being threatened and the full-time jobs would be threatened.
34The picture that emerged was of a workplace undergoing extreme change, orchestrated by a man who perhaps lacked the personal finesses to carry it off with proper attention to the effect the change was having on a relatively unsophisticated work force. There was at least one incident of a phony letter being posted wherein the staff was patronized in a very childish way, this letter purported to be from Camillo; clearly it was not. There was testimony of threats to the personal safety of Mr. Camillo. The board members were being approached and meetings were held. There was turmoil in this workplace and Mr. Camillo was perceived to be the cause. The question for this Board of Inquiry is did his behaviour amount to sexual harassment.
DECISION
35It seems axiomatic that not all behaviour between adult males and females in the workplace is sexual harassment; that is, having males and females together in one place does not, in itself, constitute sexual harassment. By the same token, having males and females together does create a sexually charged atmosphere. The Victorians recognized this and even covered table legs to shelter those entering a room from being exposed to "bare legs" and thus be embarrassed by the resulting imaginings that might follow. It is also clear that in present day society there have been many incidents where female employees have been raped and fondled and made the butt of jokes because of their femaleness. Males and females in our society are now attempting to draw a line between an acceptable level of recognition that when people are together a certain amount of camaraderie exists, often with sexual overtones, and on the other hand, a recognition that females are often vulnerable in their employment situation and this vulnerability can lead to sexual exploitation. The drawing of new boundaries is always a difficult and delicate matter.
36Counsel for the Commission cited [a] number of cases dealing with the issue of whether sexual harassment is sexual discrimination. This issue is no doubt crucial if there is no specific prohibition against harassment in the particular Code being litigated. In Ontario, there is such a provision:
7(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.
The Board could find no activity alleged in this case to be discrimination based on sex which was not being put forward as part of the harassment issue. Section 5(1):
5(1) Every person has the right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.
envisions a type of discrimination that is not harassment per se. Harassment is dealt with under another section. The fact that harassment was seen to be discrimination based on sex, in cases prior to more recent amendments giving greater specificity to the various Codes, does not require that cases of harassment be argued both as harassment and discrimination, unless there are two types of behaviour being complained of. To put the same conduct under two separate heads, as was done in this case, seems to be overkill unless some particular purpose is served by so doing, and none was demonstrated.
37Harassment is defined by the legislation in the Human Rights Code, s. 10(1) as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome" — in other words, in a characteristically vague way. The harassment referred to in this case is harassment because of sex. The Commission and the complainants need to establish that the conduct of the employee constituted a "course" of "vexatious," "unwelcome" conduct or comment. The fact that a particular employee did not know it was such is no defence if a reasonable person would have found the conduct to be vexatious. In other words, if the behaviour was such that a reasonable person, in the place of the complainants, would have found it to be harassment, then that knowledge is imputed to the respondent. All of this must be proved on the civil standard of the "balance of probabilities."
38Counsel for the Commission cited a number of cases where the behaviour of respondents was found to meet the definition of the Code. In Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (S.C.C.) the behaviour involved unwelcome sexual touching followed by a threat of firing if the behaviour was reported. In Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) the behaviour was verbal in nature; it was constant day after day and was cruel teasing that made fun of the complainant's femininity; it carried on for fourteen years despite several complaints, both to the perpetrator and the owner of the business. In the case of Waroway v. Joan and Brian's Upholstering & Interior Decorating [reported (1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311], a young girl, during the first days of her first job, was subjected to "gross" comments by the owner of the business. She was taken to a private room to watch a pornographic movie. The comments were specifically aimed at her and suggestive of sexual acts between the complainant and the owner. In the case of Lampman v. Photoflair Ltd. (September 1992), [reported 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196] (Ont. Bd.Inq.), Ms. Lampman was asked to pose in the nude; there was a finding of fact that a direct overture was made by the employer to establish a relationship of sexual intimacy with him; a pornographic movie was shown to her while the employer took the opportunity to massage her shoulders; there were other incidents of unnecessary touching of a sexual nature. The final case submitted to the Board on this question was Coutroubis v. Sklavos Printing (June 1981) [reported 1981 CanLII 4303 (ON HRT), 2 C.H.R.R. D/457] (Ont. Bd.Inq.). In this case, a 17-year-old employee was approached in a photographic dark room and kissed and handled against her will by her employer. The other complainant in that case had the same experience.
There were no cases submitted where there was no finding of harassment.
39It was argued that human rights legislation should be interpreted in a broad and liberal way to carry out the stated purpose of the Code. It was also emphasized that the purpose of the Code is to eliminate discrimination and harassment and to educate the public as to appropriate behaviour rather than to punish wrongdoers.
Decision Re "A"
40Dealing first with the complaint of "A"; we have a series of remarks of a sexual nature, only one of which was actually addressed to her about her person, that being the incident regarding the comment "are you nude under there?" Camillo claims he was attempting to enforce a dress code requiring the wearing of hose, and his question was "Are those nude stockings?" He claims he knew of the term "nude" as it relates to pantyhose because he has a wife and daughter. Whichever statement one chooses to believe, this Board cannot find that this question in the context of a dining room service area where stockings are required could constitute harassment. Mr. Camillo's first language is not English and the use of the word "nude" in today's society can hardly be seen as "something shocking." "A" further complained of two specific incidents when stories with a sexual component were told by Camillo. These were the "menstruation story," and the "room service story." Each of these was told to a group of people; none was directed at the complainant and each, according to Camillo, was told in the context of addressing specific concerns in the hotel business. There was a dispute in the evidence concerning the extent of the "room service" story regarding what Camillo did when faced with a nude woman when the door opened. Such stories as these are of mythical proportion in the hotel business and the response of a reasonable person would be to question the veracity of such a tale. The encounter Camillo described was intended to illustrate the danger to the employee when undertaking to bring alcoholic beverages to customers' rooms.
41It stretches the credibility of this Board to have a witness testify that such conversations were shocking or distressing to her. The menstruation story was "gross," as the witnesses all agreed, but again, it would be hard to call the relating of such a story harassment. "A" is a mature woman, working in a hotel that has a walk-in clientele from a rural area, as well as commercial travellers. Surely she has heard sexual matters discussed before. The type of comments made were of a similar nature to those one hears on TV or reads in magazines. They were addressed to no one in particular, nor were they about anyone known to these people. There was no evidence that they were accompanied by suggestive leering or more personal suggestions of a sexual nature.
42The final incident to be dealt with is the comments made to "A" regarding "C". These would not constitute harassment of "A". "A" testified that she felt offended by these comments and felt that similar comments were being made about her. This was hard to believe. "C" admitted she was sleeping with her male friends in the hotel. Presumably this was not a secret. "A" was not using the hotel rooms to sleep with her male friends. There was really no reason for her to assume that Camillo was saying that she was. The fact that Camillo was making true statements about one employee does not create a reason to believe that he would lie about another.
43"A" further testified that there were many comments made of a sexual nature but she could not remember what they were or how often they were made. This part of the evidence was very vague. Mr. Camillo was somewhat uninhibited in his reference to sexual matters. This was dealt with by his superiors as will be seen below.
44This complainant was under much stress during this time as her 15-year-old daughter was pregnant. There were many changes happening at work; some staff were being let go; new expectations were being demanded of those who stayed. Perhaps the witness was less able to deal with the daily frustrations of work during this troubling time. She did seek medical advice and was told to take time off work, which she did.
45This Board finds that Mr. Camillo's interaction with this complainant [does] not amount to sexual harassment and therefore dismiss[es] the complaint of "A".
Decision Re "B"
46"B' "s complaint, as well as reiterating some of the same issues as "A' "s, also included some specific complaints regarding statements made directly to her. One had to do with her going on a diet. In today's society where dieting is constantly on the lips of almost everyone one meets, can this really be seen to be such an overstepping as to warrant a charge of harassment? In a situation where people are engaged in the business of preparing and serving food, surely the talk would often turn to size, diet and eating. The comment may well have been somewhat hurtful. We all know that it is easier to see the speck in the eye of a neighbour than a bolt in our own. It is unpleasant to have one's foibles pointed out, but does such an indiscretion amount to an incident of harassment? No, it does not. This comment embarrassed her, but to warrant a complaint of sexual harassment, without totally trivializing the evil the harassment provisions of the Code [were] meant to address, the wrong done must be of a more serious nature than this type of remark. Sexual harassment occurs in situations where, for example, there is some element of the perpetrator using his/her power over a more vulnerable employee either to humiliate or to gain sexual access that would not otherwise be available. This was not the case in Mr. Camillo's interaction with "B".
47The Board realizes that this woman was embarrassed by the comments of Mr. Camillo. She believed him to be out of line. She went to the board of the Inn via her union grievance procedure and complained and had the matter dealt with. Using that route would not necessarily disqualify her from approaching the Commission if the fact situation was different.
48In an employment situation where management wants to create professional interaction between employees, management may well react to a situation to "nip in the bud" an area where trouble could be brewing. It is quite proper that management may act when the situation has not yet reached the level of harassment that is described by the Ontario Human Rights Code. They have other interest[s] to further by their own personal policies. If a matter is taken to a board of inquiry, however, it is incumbent that harassment be proven and these comments do not go that far.
49"B" complained that one day Camillo advised her to think like an Italian. She took this to mean that she should be subservient to men and wait on them hand and foot. There was no explanation as to why she took this remark to have this connotation.
50As union steward "B" was advised that Mr. Camillo knew that "C" was using the hotel to sleep with a man. Mr. Camillo told "B" that this was the reason "C" would not be offered a particular job. This information distressed her. Although it was upsetting, it was not inappropriate for the information to be passed to the union steward as the matter might have become part of a grievance.
51It was "B' "s evidence that the workplace became unpleasant during the winter of 1989–1990. The Board has no hesitation in believing this. The evidence suggests that, prior to the arrival of Camillo, the staff were pretty much in charge of what they did. He brought in many changes and laid off staff; his manner caused problems. Much of the anxiety and discontent raised by the staff would be placed at the door of the union steward. Her husband gave evidence that she cried at home; again this evidence is entirely acceptable. It is no doubt true that she came to resent Mr. Camillo and found his comments to be offensive partly because she did not like what was happening and the complaints she had to deal with. This Board can well imagine that there is a great deal of frustration and stress arising from the position of being a union steward. It may well, at times, be overwhelming. But this does not make out the charge of sexual harassment.
52It is the finding of this Board that the allegation of sexual harassment is not made out by this complainant against the respondents.
Decision Re "C"
53"C' "s allegations are of a different nature than the two other complainants in this case. "C" testified that after drawing untrue conclusions about her morality, Mr. Camillo continued to spread stories about her in the workplace. This created for her a very unpleasant situation that eventually had the result of her taking time off work to recover from the stress caused by this situation. Although "C" did testify that she did use the rooms at the hotel to stay with two different men, she resented the conclusions that [were] drawn from this fact. The incident where Camillo warned that she could be charged with soliciting seems to be well within his domain as a general manager of a hotel with a reputation to maintain. He sees her going to a room with a man who has been at the bar; he sees her coming and going through the back door of the hotel; he does not find her registered. It is not too surprising that he would draw conclusions. He confronts her with these conclusions and she tells him that the man is a particular friend of hers. His raising the issue of soliciting, in his position as a manager, cannot be seen as harassment. Camillo shared his suspicions about "C" with "B". "B" was union steward and therefore would be in a position to deal with the staff in a confidential way, either to warn them about inappropriate behaviour so as to avoid discipline, or to be prepared to deal with the fallout from discipline being taken by the employer.
54The evidence is, however, that he also said these things to other co-workers and to his wife in the hearing of other employees at the Inn. Generally, he made it clear that he believed that "C" was of questionable moral character. He said many things about her to people to indicate that she used sex to get money. It was unacceptable for him to create an atmosphere for this employee where people she worked with every day were hearing these things about her. He could have fired her if he found her behaviour was such as to bring down the reputation of the hotel. He did not do this. He cautioned her to register if she was sleeping at the hotel. The complainant testified that she did not do this. This failure to adhere to a simple reasonable request could have been considered insubordination and could have resulted in discipline. Such action was not taken. Rather, this employee had to continue to work in an atmosphere of ongoing innuendo. This created a poisoned atmosphere for her. This situation led to her seeking medical advice and taking time off work. There was no evidence of any other reason why such distress would be being [sic] felt by this woman. Camillo's comments were ongoing and untrue. They were of a sexual nature and undermined this woman's self-esteem. His remarks constituted a course of conduct that was vexatious to this woman and a reasonable person in her position would have found them so. In fact, she brought her concerns directly to Mr. Camillo and warned him that if he continued she would seek legal redress. He apologized, but yet [sic] incidents occurred after this warning that indicated his conduct did not change in regards to this woman.
This Board finds that the allegation of sexual harassment is made out in the complaint of "C".
LIABILITY
55There was evidence presented at the hearing regarding a document signed by "C" whereby she purported to have given up her rights to any further redress. There was no mention in the document about legal rights other than the grievance procedure in the union contract of which this Board has no knowledge. No specific reference was made to any rights under the Human Rights Code. It would be reading a great deal into the note signed by "C" to come to the conclusion that she was doing any more than attempting to deal with a number of issues which were a matter of concern to her continued employment with the Quality Inn; matters that were not of concern to this Board. There was no specific reference to the statements made by Mr. Camillo in the document, nor was there any evidence led about the content of the grievance meeting in this regard. This Board finds that the settling of the grievance of April 6 did not bar "C" from taking her complaint to the Human Rights Commission. Whether a specific statement in such a document, whereby an employee gives up any other form of legal redress, would have actually limited her right to go [to] the Commission is not [a] matter this Board needs to deal with as it is the finding of the Board that no such right was dealt with in any direct way by the parties to the grievance or in the resolution thereof.
LIABILITY OF BOARD OF DIRECTORS
56It is clear that Mr. Camillo is a directing mind of the corporation. He reported directly to the board and had the responsibility to fire and hire all but management staff. Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.) at D/2194 [para. 18515] quotes with approval Olarte v. Commodore Business Machines (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705.
Where the employer is a corporate entity, and an employee is in contravention of the Code, and that employee is part of the "directing mind" of the corporation, then the employer corporation is itself personally in contravention. The act of the employee becomes the act of the corporate entity itself, in accordance with the organic theory of corporate responsibility.
In the decision quoted above the Board of Inquiry goes to some lengths to deal with the exemption of sexual harassment from the vicarious liability imposed by s. 44(1) [now s. 43(1), R.S.O. 1990, c. H.19]. The Board makes it very clear that, although this section exempts the employer from vicarious liability in cases where harassment of employees by other employees is proven, this does not apply to exempt those who are viewed by law to be "directing minds of the corporation."
57Mr. Camillo's behaviour was discussed at a union meeting in early March and there was testimony that a member of the board of the Inn was present. Following this, there was a meeting held at the home of an Inn board member with Mr. Camillo and the union representative present. The board members supported Mr. Camillo and said they simply did not believe the allegations being made. The board of the Quality Inn had over the previous months many management issues with which to deal; the previous general manager had been fired and replaced with Camillo. Now Camillo was being criticized by the staff. Understandably, this group of people would want to stand behind their new choice, but there should have been some investigation of the complaint.
58By early April the board of the Inn decided to hire a personnel manager to deal with staff relations thereby relieving Mr. Camillo of that part of his job. On April 7 three grievances were submitted; one from "A", one from "C" and one from the union. These grievances requested a written apology for the "sexual harassment" occurring in the workplace. The word "apology" was misspelled and taken by the board of the Inn to be a request for a written "policy" on sexual harassment. The new personnel manager drafted such a policy that was subsequently approved by the board of directors of the Inn and posted in the employees' staff room early in May. The policy statement was a two-part document; one dealing with general harassment and one with sexual harassment. They are both two pages long.
In the summer Mr. Camillo left the Quality Inn Woodstock and took employment elsewhere.
59It is clear that in this case the board of directors of Quality Inn are liable under the Code because of the position held by Mr. Camillo within the organization. It is also clear that once convinced of the situation, they did take some steps to remedy the situation.
AWARD TO "C"
Special Damages
60"C" gave evidence that because of the distress she felt from occurrences at her workplace she sought medical advice and, relying on that advice, she took time off work in the summer of 1990. Her pay stubs were entered as evidence and indicated that she was off work from June 2 to August 11. This is a period of ten weeks. During the time shortly before and shortly after this leave, her pay, including overtime, averaged about $500 every two weeks. "C" had no proof of her tips as she does not keep a record of them. She testified that they were about $200 a week. The case of A. v. Ruby's Food Services Ltd., supra, creates a precedent for accepting testimony on the issue of tips in the absence of documentary proof. The Board notes that the issue of tips was not challenged by the respondent. This means that "C" could anticipate total earnings each week of $450, bringing her wage loss to $4,500. During this time "C" did receive Unemployment Insurance benefits and, although these cannot be used to decrease the liability of the respondents in this case, arrangements can be made for repayment of those benefits as a consequence of the award of this Board.
61"C" testified that when she returned to work, even though Mr. Camillo was no longer at the Inn, she felt harassed by the new manager and felt this harassment was the consequence of her bringing her complaint before the Commission. This Board finds on the basis of the evidence presented at the hearing that this was not the case. "C" had some difficulties at work which were properly brought to her attention. The Board does not find the actions of her new manager were of a retaliatory nature.
62"C" quit her job in late January 1991 and, finding herself pregnant, did not seek new employment. This Board finds no liability of the respondents for "C' "s decision to leave her employment.
General Damages
63The Board of Inquiry allowed written submissions to be made on the issue of general damages in addition to those led at the hearing as the Board wished information specifically dealing with sexual harassment cases. The Board wishes to thank the parties and counsel for their adherence to the schedule set up and to particularly thank Commission counsel for her submissions in this area.
64The decision in Cameron v. Nel-Gor Nursing Home, supra, creates a presumption of an award for general damages.
See Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 [at D/468, para. 141]:
General damages are to be awarded to cover a variety of interests beyond what has traditionally been referred to as mental anguish, including the loss of the right to be free from discrimination and the injury to dignity and self-respect which flows from an act of discrimination.
65The nature of the harassment experienced by "C" was verbal, not physical, but it was ongoing despite "C' "s direct request that it be stopped. This harassment had a psychological impact on "C". She indicated in her testimony that these incidents caused her stress and caused her to "think less of herself." Eventually she sought professional help to deal with her concerns. "C' "s right to be free from harassment in the workplace was infringed. Taking all of this into account, the Board awards her $2,000 in general damages.
Interest
66The Board chooses not to make an award of prejudgment interest on the general damages, but it shall be paid on the special damage award calculated on the period commencing from the date on which "C" filed her complaint with the Human Rights Commission. Post-judgment interest is payable on both of the monetary awards. Interest shall be calculated in accordance with the manner prescribed by the Courts of Justice Act [S.O. 1984, c. 11] of Ontario. Post-judgment [is] to be calculated on the period commencing thirty days from the date of the issuance of this decision.
FURTHER ORDER
67This Board orders that the respondent, Quality Inn, work with the Commission to revise its present harassment policy to clarify when discipline will result and what that discipline will be when the policy is not adhered to. Once the policy is perfected it should be given to each employee and posted in a prominent position in the Quality Inn.
The respondents i[n] this matter are jointly and severally liable for the awards granted.