Wales-Callaghan v. CN Office Cleaning Ltd.
1993-08-23
Ontario Board of Inquiry
Jo-Anne Wales-Callaghan Complainant
v.
CN Office Cleaning Ltd. and Cavell Nicholson Respondent
Date of Complaint: June 6, 1991
Date of Decision: August 23, 1993
Before: Ontario Board of Inquiry, George N. Carter
Comm. Decision No.: 538
Appearances by: Kaye Joachim, Counsel for the Commission Louis S. Allore, Counsel for the Respondents
SEXUAL HARASSMENT — poisoned work environment — sexual advances by employer — DAMAGES — determining quantum using restitutio in integrum principle — injury to dignity and self-respect — determination of sufficient effort to mitigate
Summary: The Board of Inquiry finds that Jo-Anne Wales-Callaghan was sexually harassed by the owner of CN Office Cleaning Ltd., Cavell Nicholson, while she was employed by him.
The Board of Inquiry accepts Ms. Wales-Callaghan's evidence that during the period she was employed as a cleaner from October 1990 until March 1991, Mr. Nicholson touched her repeatedly, grabbed her on a couple of occasions, called her by terms of endearment, remarked on her "bedroom eyes" and her "beautiful arse" in front of other employees, and joked about taking her to Las Vegas. Though she repeatedly indicated that his comments and conduct were unwelcome, he persisted.
The Board of Inquiry finds that there was no sexual solicitation involved here, but the behaviour of Mr. Nicholson was sexual harassment.
Ms. Wales-Callaghan left her employment because of the sexual harassment at the point where she knew she was eligible to collect unemployment insurance.
The Board of Inquiry orders the respondents to pay Ms. Wales-Callaghan $1,500 as compensation for the humiliation she experienced and $2,700 as compensation for lost wages.
Cases Cited
Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281, 10 C.H.R.R. D/6347 (C.A.): 31
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 31, 36
Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.): 26
Cunningham v. Royal Canadian Legion, Branch 594 (1993), 1993 CanLII 16503 (ON HRT), 20 C.H.R.R. D/239 (Ont. Bd.Inq.): 28, 34
Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 30
Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 26
Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 27, 30
McKee v. Hayes-Dana Inc. (No. 1) (1992), 1992 CanLII 14231 (ON HRT), 17 C.H.R.R. D/79 (Ont. Bd. Inq.): 32, 34
O.P.E.I.U., Local 267 v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 32
Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 (Ont. Bd.Inq.): 33
Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 26, 29
Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1805, 58 D.L.R. (4th) 193: 24
York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 37
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 7(2): 2, 23
s. 7(3): 23
s. 7(3)(a): 5
s. 9: 23
s. 10(1): 23
s. 38(1): 1
s. 41(1): 23
s. 41(1)(a): 25
s. 41(1)(b): 36
Authorities Cited
Waddams, S.M., The Law of Damages, 2d ed. (Toronto: Canada Law Book, 1983): 24
1On February 7, 1993, I was appointed to serve as a board of inquiry by the Minister of Citizenship pursuant to the Ontario Human Rights Code [R.S.O. 1990, c. H.19], s. 38(1) to hear the complaint of Jo-Anne Wales-Callaghan dated June 6, 1991, against CN Office Cleaning Ltd., and Cavell Nicholson alleging sexual solicitation.
2By consent of the parties, the complaint was amended to include sexual harassment contrary to the Ontario Human Rights Code, s. 7(2), and to state the proper corporate name of the respondent, CN Office Cleaning Ltd. The particulars of the complaint filed set out allegations of sexual harassment as well as alleged sexual solicitation. Both respondents have had ample notice of the allegations. While the amendment adding sexual harassment worked to the ultimate disadvantage of the respondents, they were in no way taken by surprise or otherwise unprepared to meet the case brought against them. That the respondents were unsuccessful, in part, speaks to the strength of the complainant's case and not to any prejudice by reason of the amendment consented to by able and properly instructed counsel.
3At the conclusion of the evidence and after hearing able submissions of both Mr. Allore and Ms. Chada, I announced there would be a finding in favour of the complainant against both respondents subject to review of the transcripts as these became available, with ball-park figures of general damages in the amount of $750 for infringement of the complainant's right, and $750 for mental anguish. I indicated that there would be an award of special damages in the neighbourhood of eight weeks' loss of employment at $9 per hour for thirty-seven and one-half hours per week. Also I stated there would be pre-judgment interest awarded at 6.5 percent per annum from June 1991 until the date of these reasons, and post-judgment interest at 10 percent per annum until the judgment is paid. The pre- and post-judgment figures were not contested by the respondents and were based on actuarial tables I accept. Having received the transcripts and exhibits filed, I see no warrant to depart from these findings.
4While this matter consumed five days of evidence and submissions, it was essentially a credibility case there being no disagreement over the applicable legal principles with regard to what constitutes sexual harassment, sexual solicitation, or the burden and test of proof. The respondents' counsel commendably agreed that if I accepted the evidence of the complainant and her witnesses, sexual harassment was made out. While Mr. Nicholson strenuously denied certain allegations regarding particular instances of sexual touching, he admitted all-in-good-fun sexual banter and joking which — to his mind — encouraged an informal and congenial work atmosphere in which his employees participated (a cleaning crew of adults not to be confused with a class at Sunday school). His spin on the admitted events amounted to no harmful intention and, if error, harmless error. Mr. Nicholson admitted that his was the mind and will of the corporate respondent — as he put it, he was "the boss." Mr. Nicholson is a man of rustic charm, intelligence, energy and considerable achievement. I accepted his evidence of genuine concern for his employees, going out of his way to help as problems arose. He is generous, forgiving, hot-tempered but quick to cool down, and a tactile person by nature and upbringing. He has many good qualities, but an awareness of, and sensitivity to, what the Ontario Human Rights Code defines as sexual harassment is unfortunately not among them.
5The allegation of sexual solicitation is without any foundation in the evidence. What he said was understood by all persons concerned to be Mr. Nicholson's usual favourite sexual jokes of which the complainant was often the butt. There being no jurisprudence defining sexual solicitation to the contrary, I find that the words alleged to constitute sexual solicitation or advance as per Ontario Human Rights Code, s. 7(3)(a) must be objectively and subjectively capable of reasonable interpretation and genuine intent. Jokes amounting to sexual harassment are to be distinguished from solicitation or advance — a bad or inappropriate joke is still a joke. Wooden interpretations of statutes cost public confidence and do not assist the attainment of the Code's objectives. I am persuaded on clear and convincing proof that no solicitation or advance was intended.
THE FACTS
6Counsel for all parties agreed the complainant was employed as a cleaner by the corporate respondent from October 24, 1990, until she quit on March 22, 1991. She began work at $8 per hour, subsequently raised to $9 per hour. The raise attests to her satisfactory job performance. Her unchallenged testimony was that she was employed between thirty-five–forty hours per week. Evidence went unchallenged that at the commencement of these hearings on June 28, 1993, she was employed as a waitress at a Swiss Chalet in Oshawa beginning on July 25, 1992, at a current rate of $5.80 per hour. This was the first job the complainant had taken since leaving the corporate respondent's employment some sixteen months earlier. I accept the complainant's testimony that she worked for the corporate respondent just long enough to qualify for Unemployment Insurance and that she gave general harassment with sexual particulars as her reason for quitting her job. Her evidence was vague as to how long she was on Unemployment Insurance and when these benefits expired, although these facts were easily enough available had she chosen to make corroborative inquiries. I am persuaded that the availability of Unemployment Insurance was a major factor in the complainant's quitting her job and in filing a complaint with the Ontario Human Rights Code [sic].
7The complainant testified that she had a series of low-skilled, low-paying jobs since leaving school in grade 9. Without reviewing her entire employment history, she had been in telemarketing from October 1986 until March 1988 when her first child was born. She drove a school bus for the Durham Region Board of Education from September 1988 until April 1989. She worked as a housekeeper at the Whitby General Hospital from April 1989 until March 1990, when she was advised to discontinue by her doctor due to her second pregnancy. After the birth of her second child, a daughter, in 1990, she took the job she saw advertised at the Unemployment Office in Whitby with the corporate respondent. This job appealed to the complainant because she could work evenings; she would be driven to and from work; the pay was good; money was tight in her family due to mounting bills and her husband's low-pay from his job as a part-time letter carrier. She attended at the home of Mr. Nicholson and, after a brief interview, was hired to begin work the next day. The complainant's husband was not produced as a witness before the Board of Inquiry, nor was his absence explained. The complainant's case was weakened by his non-attendance.
8At the Darlington facility, the complainant cleaned washrooms, polished chrome, vacuumed, dusted furniture and equipment, collected garbage and washed floors as assigned by Mr. Nicholson. She worked at the administration building, annex, trailer, warehouse, soils laboratory, lunch room, employment building and the engineering and construction areas. She was usually paired with fellow employee, Karen Olsen, a witness in these proceedings. Fellow employees, Michael Abramson and Allen Vickers, both witnesses, worked at the same locations. The men generally did the heavier work and lifting, though everyone pitched in as required to get the job done. The male and female teams were not always in the same location at the same time. They came to work and left together in the usual course of their employment.
9The complainant was driven to work by Mr. Nicholson at the beginning of her employment. Mr. Nicholson also picked up Mr. Abramson and Mr. Vickers along the way to the Darlington facility. On the way home, the complainant was dropped off last because she lived fairly close to Mr. Nicholson. She was alone with him for fifteen minutes.
10The complainant testified Mr. Nicholson made her uncomfortable by touching her hair, arm and knee, and by calling her names of endearment while she was in his van. He also repeatedly mentioned her "bedroom eyes" to others in the van in her presence. Mr. Nicholson joked about taking the complainant to Las Vegas, her "beautiful arse," and "playing post office" with her husband. The complainant tolerated these comments because Mr. Nicholson was her boss and she did not know what to say in response. She politely asked him to stop in a jocular way so as not to offend him. The comments continued both in the van and elsewhere on the work site. These comments always made the complainant feel humiliated and frustrated because of her inability to get him to shut up and cease pawing at her. The complainant testified Mr. Nicholson told her he liked to watch dirty movies after work and asked what she did in her spare time.
11After Mr. Nicholson threatened to deduct gas money from his employees' cheques for the rides to and from work, Mr. Abramson and Mr. Vickers decided to drive their own vehicles. The complainant accepted a ride and contributed gas money to them because she did not trust Mr. Nicholson to make the deductions from her cheque and because she wished to avoid Mr. Nicholson's unwanted attentions and comments. She testified Mr. Abramson and Mr. Vickers understood her position and provided her with transportation.
12The complainant recalled an instance when Mr. Nicholson grabbed her. She, Karen Olsen and Allen Vickers had finished work and were waiting for Mr. Nicholson to pick them up at the warehouse. The complainant was sitting on a desk when Mr. Nicholson came up behind her and wrapped his arms around her belly while making kissing noises in her ear, "his breath tickled my ear and he was pretending to kiss me." The complainant broke his grip and told him to stop accosting her in that way.
13The complainant recalled a second touching incident a week or so after the first in the annex trailer at the start of her shift when she was teamed with Laurie Condon, another female employee. She customarily wore leg weights at work. She had to find Mr. Nicholson to ask instructions and when she located him, he grabbed her from the front "chest to chest." She pushed him away and struck him on the arm with a leg weight she had not yet put on and screamed at him. She was very angry, "yelling and shaking." She felt "dirty and ashamed." At the end of her shift, Mr. Nicholson told her she could no longer wear leg weights at work because they slowed her down. After being struck on the arm, Mr. Nicholson stopped grabbing her, though his comments continued. Mr. Nicholson continued to laugh off her objections.
14The complainant recalled being alone with Mr. Nicholson in his van on Highway 401 stuck in a traffic jam due to a snowstorm. Mr. Nicholson started in about the "bedroom eyes" and "playing post office." He told her, "I'll give you $20,000 and my German (meaning his wife) if you'll go away with me to Vegas for a weekend." She testified she did not know whether Mr. Nicholson was joking or not. As already stated, I am satisfied that he was again exercising his bullying sense of humour at the complainant's expense. The complainant admitted Mr. Nicholson never tried to make a date with her at any place between Whitby and Las Vegas as he would have if he were serious about proposing an assignation. At no time was sex a condition of the complainant's employment.
15The complainant testified about Mr. Nicholson's verbal harassment of other female employees. The particulars were along the same themes as the comments she endured. The evidence was substantially confirmed by Hanna Civrpik who gave evidence about the annoying way Mr. Nicholson treated her as well. She described him as "a jerk."
16Sometime in February 1991, the complainant was transferred to the Durham Public Works complex where she worked until she quit. She recalled a phone call to her home made by Mr. Nicholson in which he made his, by then, standard "playing post office" joke. When he was told by the complainant she was in the bath when the phone rang, he asked if she was naked wand [sic] whether she needed his help in getting dressed.
17The complainant recalled being introduced to a friend of Mr. Nicholson's family who was to join the company. In her presence, Mr. Nicholson repeated his "bedroom eyes," "beautiful arse," and "post office" routines. Later that same evening, she heard Mr. Nicholson compare her anatomy to the pictures of naked women displayed on the walls of a certain building at the Durham complex. She testified this remark was the proverbial straw that broke the camel's back. She went home and told her husband she was quitting her job and did quit as soon as she was eligible for Unemployment Insurance benefits. Her letter explaining why she quit her job saved her a twelve-week penalty. I find that Unemployment Insurance eligibility was the prime motive for lodging the complaint with the Human Rights Commission. The human rights complaint was a secondary but a substantial motive flowing from the complainant's concern with the Unemployment Insurance eligibility criteria.
18The complainant testified she learned of the Human Rights Code while at Darlington when Michael Abramson showed her a pamphlet explaining sexual harassment. She said she read the pamphlet and understood its contents but did not file a complaint until she was eligible for Unemployment Insurance and had an "alternative choice."
19The complainant's evidence concerning the verbal and physical harassment she suffered was corroborated in its essentials by the evidence of Allen Vickers, Hanna Civrpik, Michael Abramson, Laurie Condon and Karen Olsen, all employees at CN Office Cleaning Ltd. at the relevant times. Despite spirited cross-examination by the respondent's counsel suggesting bias against Mr. Nicholson for various reasons, their evidence is accepted when it conflicts with that of Mr. Nicholson and the witnesses called on his behalf. I am satisfied on substantially more than a balance of probabilities that the complainant was verbally and physically sexually harassed in the ways described in her testimony. I am satisfied that Mr. Nicholson persisted in his warped sense of humour believing it all in good fun despite the complainant's remonstrations and indications of obvious displeasure.
20The complainant testified that after she left CN Office Cleaning Ltd., she "started seriously looking for something else" in Oshawa, Ajax and Whitby. She put together letters of recommendation, checked want ads, visited potential job locations and inquired among her friends about openings. These letters of recommendation are not put in evidence. In evidence are photocopies of advertisements for garage sales and daycare placed in the Whitby Free Press in July, September and October 1991. I have difficulty with the complainant's evidence about her job search and am persuaded the complainant was content to coast on her Unemployment Insurance benefits until these expired. On the totality of the evidence, I accept the complainant could have found alternative employment within eight weeks of leaving CN Office Cleaning Ltd. had she taken meaningful steps to do so. Special damages for eight weeks' loss of income are appropriate compensation.
21The complainant testified she suffered from headaches while in the employment of CN Office Cleaning Ltd. She subsequently came to believe these headaches were stress and anxiety related. She cried a great deal, had nightmares and fought with her husband over money and quitting her job. No medical evidence was called corroborating these allegations in which I find some truth and even more exaggeration. I entirely reject the complainant's evidence she feared some sort of assaultive or property damaging retaliation by Mr. Nicholson. However, I am persuaded Mr. Nicholson's obnoxious, insulting humiliations and degrading behaviour were in clear violation of the Code and caused the complainant to suffer mild stress and anxiety. I do not place much weight on the complainant's mother's evidence concerning phone calls the complainant placed to Texas, allegedly confirming the complainant's evidence of a pronounced personality change over the course of her employment with the corporate respondent. No doubt Mr. Nicholson's boorish behaviour was a burden to the complainant but the seeds of her discontent were planted before she met him. Medical evidence that might have supported the complainant's stress and anxiety allegations was not available to this Board of Inquiry. Nor was there any corroborative evidence from her husband, as might have been expected were these allegations well-founded. While corroboration is not required as a matter of law, its absence is a matter to be taken into account in assessing the weight of the complainant's case where, in the usual case, it would be forthcoming and when the complainant's demeanour while giving her evidence suggests that she is essentially truthful but prone to gild her testimonial lily.
22Mr. Nicholson testified at some length about his background and upbringing as one of nineteen children in the Cape Breton family into which he and his twin brother were born fifty-seven years ago. He and his twin dropped out of school in grade 3 and went to work mining coal to help support his younger brothers and sisters. He is illiterate, hard-working, rough around the edges, hot-tempered, good-hearted, compassionate, loyal, a good businessman and, all-in-all, a good husband and father. I accept without reservation that he did not know of the Human Rights Code and that had he known, he would have governed himself accordingly. He was not malicious within the Code's definition, but he was exceedingly reckless in pursuing a course of conduct he regarded as good-humoured teasing, social touching and mutually enjoyable sexual banter. His grabbing of the complainant was utterly inexcusable. He should have known enough to keep his hands to himself assuming he knew no more than that about how a male employer ought to treat his female employees (even those who do not complain, as I find the complainant did on more than one occasion). Absent malice, Mr. Nicholson went too far verbally and physically too often to be excused.
THE LAW
23The Human Rights Code prohibits sexual harassment of employees in the workplace by employers or fellow employees. The workplace extends to vehicles provided by their employer to transport employees to and from work.
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.
10(1) "Harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
The Human Rights Code also prohibits sexual solicitation or advance and reprisal or threat of reprisal or rejection of a solicitation or advance:
7(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 ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
The Human Rights Code empowers a board of inquiry to order remedial measures to achieve compliance with the Act, and to award monetary compensation for loss arising out of the infringement, and where the board finds the infringement has been wilful or reckless, to make an award to monetary compensation not to exceed $10,000 for mental anguish.
41(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 9 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, the party ought to do to achieve compliance with the Act, both in respect to 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 wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000 for mental anguish
24I have already given my reasons for finding that a case of sexual solicitation or advance has not been made out on the facts of this particular case. Neither is this a suitable case to award aggravated damages as set out by the Supreme Court of Canada in Vorvis v. Insurance Corporation of British Columbia(1989), 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193 at 201:
[A]ggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory.
At p. 202, MacIntyre J. quotes from Professor Waddams, The Law of Damages, 2d ed., 1983, p. 562:
... aggravated damages describes an award that aims at compensation but takes full account of the intangible injuries such as distress and humiliation, that may have been caused by the defendant's insulting behaviour.
25Because the corporate respondent has suffered severe business reversals that may in part result from the complaint in this action, Mr. Nicholson and his wife are, at present, its remaining employees. There will be no award under s. 41(1)(a) aimed at insuring present and future compliance with this Act. Had Mr. Nicholson known of the Human Rights Code, I am persuaded he would have complied with its provisions. He knows now.
26Sexual harassment is an abuse of power; it may be an expression of power or desire or both. It requires a course of vexatious comment that may or may not refer to matters or sexual intimacy, and which is known, or ought reasonably to have been known, to be unwelcome: Cuff v. Gypsy Restaurant(1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 at D/3980, paras. 31525, 31530–31 (Ont. Bd.Inq.); Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 at D/36 (Ont. Bd.Inq.); Janzen v. Platy Enterprises Ltd.(1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 at D/6224, para. 44444 (S.C.C.).
27Neither an informal work environment nor an affable, gregarious or "hands-on" nature on the part of a boss is a defence to an allegation of sexual harassment: Lampman v. Photoflair Ltd., unreported Ont. Bd.Inq. decision, John D. McCamus, Chair, September 28, 1992, p. 47 [now reported 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 at D/208].
28Violation of the complainant's right through a course of unwanted and vexatious words and actions of a sexual nature may justify the complainant quitting work and relying on their rights under the Code for compensation: Cunningham v. Royal Canadian Legion Branch 594, unreported Ont. Bd.Inq. decision, Robert W. Kerr, Chair, February 26, 1993, p. 11 [now reported 1993 CanLII 16503 (ON HRT), 20 C.H.R.R. D/239 at D/244.
29Sexual harassment must be a significant factor in the termination of the employment relationship but not necessarily the primary or sole reason for its termination: Lampman v. Photoflair Ltd., supra, at 53 [D/209]; Shaw v. Levac Supply Ltd., supra, at D/62 para. 198.
The fact that the complainant had unemployment compensation in mind, or that she filed a complainant [sic] under the Human Rights Code to bolster her Unemployment Insurance eligibility does not disentitle her to compensation under the Code.
A complainant may act in response to mixed motives so long as sexual harassment is a significant factor in the decision to terminate the employment relationship. I am satisfied on more than a balance of probabilities the complainant was sexually harassed, that she was entitled to quit work when she did for the reasons stated in her evidence, and to seek her remedies under this Act.
30It is well established the corporate employer will be held liable where the harassing agent is the directing mind and controlling will of the employing corporation. It is uncontroverted that Mr. Nicholson made the executive decisions for the corporate respondent. His was a personal "hands-on" style of management. He was the boss in the fullest sense of that term: Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.) [at D/2800, para. 22922]; Lampman v. Photoflair Ltd., supra, at 51 [D/209]; Shaw v. Levac Supply Ltd., supra, at D/67, paras. 234–35.
31It is a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation. This is necessary in order to put the complainant in the same position as he or she would have been but for the infringement by the respondent and to meet the broader policy objectives of the Code. There is a presumption in favour of making awards of general and special damages in human rights cases. The measure of monetary damage is not the reasonable notice used in wrongful dismissal cases, but what the complainant would have earned had he or she not been denied the employment opportunity: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2196 (Ont. Bd.Inq.); Piazza v. Airport Taxicab (Malton) Association (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 at 284 [10 C.H.R.R. D/6347 at D/6348] (C.A.).
32The complainant in a human rights case has a duty to mitigate his or her damages with the onus of proving failure to mitigate falling upon the respondent: Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 at D/180, para. 127 (Ont. Bd.Inq.); McKee v. Hayes-Dana Inc., unreported Ont. Bd.Inq. decision April 1992, at pp. 22–23 [now reported 1992 CanLII 14231 (ON HRT), 17 C.H.R.R. D/79 at D/84].
33Loss of income compensation may be cut off at a point when it is no longer reasonably foreseeable that the complainant's mitigation efforts would be unsuccessful: Gohm v. Domtar Inc. (No. 4), supra, at D/180, paras. 128–31; Parks v. Christian Horizons (No. 2) (1992), 1992 CanLII 14224 (ON HRT), 16 C.H.R.R. D/171 at D/172, paras. 6–7 (Ont. Bd.Inq.).
34The reasonableness of the complainant's mitigation efforts should be assessed from the perspective of the complainant and does not require taking the most reasonable course of action, but rather taking a course of action which seems reasonable in the circumstances and can be demonstrably justified. The Code does not countenance rampant subjectivity: McKee v. Hayes-Dana, supra, at 22-23 [D/84, para. 46]; Cunningham v. Royal Canadian Legion Branch 594, supra, at 11 [D/244].
35While the respondent might have done more to explore the mitigation issue, I am satisfied on the totality of the evidence, including the relative ease with which other employees found jobs after leaving the employment of the corporate respondent and the complainant's success at finding jobs in the past, that eight weeks is sufficient special damages compensation.
36General damages may be awarded under Code s. 41(1)(b) to compensate for (i) loss arising out of the infringement; and (ii) monetary compensation not to exceed $10,000 for mental anguish where the infringement has been engaged in wilfully or recklessly. Loss of dignity and self-respect are losses arising from the infringement, bearing in mind the human right that has been infringed has an intrinsic value: Cameron v. Nel-Gor Castle Nursing Home, supra, at D/2198, paras. 18538–39.
37Where compensation for mental anguish is sought, the complainant must establish on at least a balance of probabilities that the respondent was either wilful or reckless. To find the respondent's conduct to have been wilful, the infringement must be shown to have been the purpose of his or her act; showing merely that the act was intentional is not sufficient. Reckless, on the other hand, means that the respondent's conduct must be shown to evidence disregard or indifference to its consequences, that it is done with rashness, heedlessness or wantonly without regard to probable or possibly injurious consequences: York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 at D/413, para. 57 (Ont. Div.Ct.); Cameron v. Nel-Gor Castle Nursing Home, supra, at D/2198, para. 18546.
38For reasons set out above, I find Mr. Nicholson was reckless, though not wilfully. He was not malicious, but heedless to injurious consequences in exercising his sense of humour at the complainant's expense and his penchant for socially inappropriate touching transgressing the complainant's dignity as a woman and as an employee. An award of $750 for infringement of the right, and further award of $750 for mental anguish is proper compensation in view of the totality of the circumstances in this case.
ORDER
39It is ordered that the respondents Cavell Nicholson and CN Office Cleaning Ltd. pay the complainant Jo-Anne Wales-Callaghan:
a. general damages in the amount of $1,500;
b. special damages in the amount of $2,700;
c. pre-judgment interest at 6.5 percent per annum from June 6, 1991, until the date of this judgment;
d. past judgment interest at 10 percent per annum from the date of judgment until paid.