Bruce v. McGuire Truck Stop, 1993 CanLII 16458

Bruce v. McGuire Truck Stop

1993-02-23

Ontario Board of Inquiry

Lee Ann Bruce and Darlene Jackson Complainants

v.

McGuire Truck Stop and Neil McGuire Respondents

Date of Complaints: December 29, 1989, and March 17, 1990

Date of Decision: February 23, 1993

Before: Ontario Board of Inquiry, Errol P. Mendes

Comm. Decision No.: 498

Appearances by: Sharon Ffolkes-Abraham, Counsel for the Commission Neil McGuire, On his own behalf

SEXUAL HARASSMENT — sexual advances by employer — poisoned work environment — age of complainants — survey of the law — DAMAGES — determining quantum using restitutio in integrum principle — compensation for injury to dignity and self-respect — BOARDS OF INQUIRY/TRIBUNALS — authority to proceed in absence of respondent

Summary: The Board of Inquiry finds that Neil McGuire, owner and operator of McGuire Truck Stop in Cobden, Ontario, sexually harassed Lee Ann Bruce and Darlene Jackson while they were employed as waitresses.

Both Lee Ann Bruce and Darlene Jackson were 15 years old at the time they worked for Neil McGuire. Both women were subjected to repeated touching, sexual innuendoes and sexual solicitations by Neil McGuire. On one occasion Mr. McGuire brought a VCR into the kitchen area of the Truck Stop and tried to make both women watch a pornographic movie, while he remarked that he wished that they were both in it. Ms. Bruce and Ms. Jackson both left their employment because of the harassment. Ms. Bruce left after a couple of days of employment; Ms. Jackson left after a couple of months.

The Board of Inquiry finds that Neil McGuire sexually harassed the complainants and further violated the Code by making sexual solicitations while in the position of controlling their employment and employment conditions.

The Board of Inquiry finds that the sexual harassment was aggravated by the youth of the complainants. Mr. McGuire cannot argue that he did not know or should not have known that his conduct was unwelcome.

The Board of Inquiry orders Neil McGuire and McGuire Truck Stop to pay Lee Ann Bruce $3,200 as compensation for lost wages, and Darlene Jackson $2,400 as compensation for lost wages. In addition, the Board of Inquiry orders the respondents to pay each woman $2,500 as compensation for the distress caused to them. The respondents are also required to report hirings and resignations of women employees to the Ontario Human Rights Commission in any business that they carry on.

Cases Cited

Brown v. Blake (1971), (Ont. Bd.Inq.) [unreported]: 4

Coutroubis v. Sklavos Printing (1981), 1981 CanLII 4303 (ON HRT), 2 C.H.R.R. D/457 (Ont. Bd.Inq.): 29

Cox v. Super Great Submarine & Good Eats (1981), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609 (Ont. Bd.Inq.): 22

Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.): 25, 36

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 22

Hall v. Sonap Canada (1989), 1989 CanLII 9071 (ON HRT), 10 C.H.R.R. D/6126 (Ont. Bd.Inq.): 23, 28

Hughes v. Dollar Snack Bar (1981), 1981 CanLII 4304 (ON HRT), 3 C.H.R.R. D/1014 (Ont. Bd.Inq.): 4

Lee v. T.J. Applebee's Food Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.): 22

Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (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.): 28, 40

Williams v. Ronlette (1973), (Ont. Bd.Inq.) [unreported]: 4

Legislation Cited

Canada

Criminal Code, R.S.C. 1985, c. C-46

s. 153(1): 12

s. 153(1)(a): 13, 17

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 5(1): 19, 22, 33

s. 7(2): 24, 33

s. 7(3): 30, 33

s. 7(3)(a): 31

s. 7(3)(b): 31

s. 10: 24

s. 41(1): 34

s. 41(1)(b): 37

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, s. 7: 4

I. PRELIMINARY POINTS

11. The hearing in this matter dealt with two separate complaints by Lee Anne Bruce and Darlene Jackson respectively. While the complaints arose out of separate incidents, those incidents were closely related in time and circumstances. Both also involved the same individual respondent who gave a common defence for both complaints. It was therefore decided that both complaints would be dealt with in the same hearing.

22. The respondent did not appear on the first day of the hearing. He had informed counsel for the Commission that he had to look after a sick child and could not find a babysitter. The position of the same counsel was that the hearing should go ahead as the respondent did not have a credible excuse for not appearing.

3Counsel for the Commission informed the Board that Mr. McGuire had been informed of the time and place of the hearing on at least two occasions since November 10, 1992. Counsel also presented several items of documentary evidence which indicated that the respondent had not co-operated fully with the human rights investigation process and in particular had failed to fill in the respondent's questionnaire since February 30 [sic], 1992. Indeed the Commission had not heard from the respondent since March 23, 1992.

4After hearing the above argument, and considering human rights jurisprudence dealing with similar situations (see Brown v. Blake unreported decision of Ontario Board of Inquiry, 1971; Williams v. Ronlette unreported decision of Ontario Board of Inquiry, 1973; Hughes v. Dollar Snack (1981), 1981 CanLII 4304 (ON HRT), 3 C.H.R.R. D/1014 (Ont. Bd.Inq.)), the Board decided pursuant to s. 7 of the Statutory Powers Procedures Act [R.S.O. 1980, c. 484] to proceed in the absence of the respondent.

5However, the Board asked counsel for the Commission to take steps to notify the respondent at some point during the first day of the content of the Board's ruling and urging him to attend on the second day to present his case.

6The Board proceeded to hear testimony from four of the Commission's witnesses (not including the two complainants). The Board was informed by counsel for the Commission after the lunch-hour adjournment that Mr. McGuire would be attending on the second day of the hearings to cross-examine the two complainants and present his own case. The respondent did appear as indicated for the December 10, 1992, hearing of the testimony of the two complainants.

II. THE FACTS

The Complaint of Ms. Lee Anne Bruce

8Ms. Bruce, whose date of birth is January 28, 1974, is a student attending Opeongo High School in Cobden, Ontario. She commenced part-time employment as a waitress on November 10, 1989, at McGuire Truck Stop, an establishment owned and operated by the respondent.

9She was employed to work mostly on the 3:00 p.m. to 11:00 p.m. shift. Her duties included being a waitress, cashier and dishwasher. She worked briefly with other waitresses, including the second complainant, Ms. Darlene Jackson. However, in the evenings, after 6:00 p.m., she would be alone in the Truck Stop with the respondent.

10Ms. Bruce left her employment only two days after she started. She stated before the Board that the respondent began touching her sexually while she was performing her duties and also persisted in making sexual comments and innuendoes. The respondent also brought down a television and VCR from an upstairs apartment and briefly played a pornographic movie in the kitchen area in full view of Ms. Bruce, who was 15 years old at the time.

In cross-examination, Mr. McGuire did not contest these facts, but rather only sought confirmation from Ms. Bruce that at no time did he threaten her with her job if she resisted his sexual advances.

11A guidance counsellor at the school which Ms. Bruce attended, Mr. W.L. Kirby, had learned that four other female students, including Darlene Jackson, had similar experiences while working for Mr. McGuire. Together with the school principal, Mr. Kirby met with the students and advised Ms. Bruce not to return to her employment and to inform their parents of what had taken place.

12The police were eventually brought into the situation. Constable Murphy of the O.P.P. Pembroke Detachment investigated the situation and eventually charged the respondent with five counts of sexual exploitation contrary to s. 153(1) of the Criminal Code [R.S.C. 1985, c. C-46].

13Mr. McGuire entered a plea of guilty to three of the charges, including those involving Ms. Bruce and Ms. Jackson. The Crown moved to dismiss the other two charges.

Mr. McGuire was fined $500 and one year's probation for each of the three convictions under s. 153(1)(a) of the Criminal Code.

14Constable Murphy also contacted the Ontario Human Rights Commission and explained the incidents leading up to the criminal convictions. The Commission then followed up with the two complainants in this case.

The Complaint of Darlene Jackson

15Ms. Jackson, whose date of birth is July 27, 1974, is also a student attending Opeongo High School in Cobden, Ontario. She commenced part-time employment at McGuire Truck Stop in September 1989 and left the same employment on November 17, 1989. Ms. Jackson usually worked the night shift from approximately 3:30 p.m. to 11:00 p.m. and on Sundays from 7:00 a.m. to 3:00 p.m. Her duties consisted of being a waitress, cashier and dishwasher.

16A pattern of sexual harassment by Mr. McGuire was commenced even at the interview stage. The respondent asked Ms. Jackson whether she had a boyfriend and how long they had been dating and other personal questions which had nothing to do with the job description.

17After two weeks, the same type of sexual touching and harassment that occurred with Ms. Bruce also took place with this complainant. In addition, Ms. Jackson was working with Ms. Bruce when the pornographic movie was played in the kitchen area. Ms. Jackson alleged that the respondent stated he wished both complainants were in the movie. Ms. Jackson shut off the movie immediately, stating it was not suitable for that working environment. As the incidents of sexual touching and harassment continued, Ms. Jackson became increasingly distressed and eventually refused to work the same shifts as the respondent. Ms. Jackson left her part-time employment with the respondent after being advised to do so by Mr. Kirby, the school counsellor, Constable Murphy and her parents. As discussed earlier, the above incident led to a charge being laid against Mr. McGuire and his eventual conviction of sexual exploitation of Ms. Jackson, contrary to s. 153(1)(a) of the Criminal Code. On conviction of the offence, a fine of $500 and one year's probation was levied against the respondent.

18In his cross-examination of Ms. Jackson, Mr. McGuire did not attempt to refute the above facts but attempted to prove that Ms. Jackson had also attempted to touch him, in the form of tickling or putting ice-cubes down his back. However, the respondent did not attempt to further prove that, if such events took place, they would amount to any form of condonation or consent to the acts of sexual touching and harassment committed by him. Finally, it should be noted that the respondent also admitted to hugging both complainants to thank them for the work they did. Both complainants indicated that such physical contact was unwelcome and not encouraged.

III. THE LAW AS APPLIED TO THE FACTS

A. Discrimination on the Basis of Sex

19The relevant provisions of the Ontario Human Rights Code [R.S.O. 1990, c. H.19] (hereinafter the "Code") is s. 5(1) (form[er]ly s. 4(1)) which states:

Every person has a 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.

20This Board has concluded that both complainants were treated differently on the basis of sex because of the poisoned work environment created by Mr. McGuire through his constant sexual touching, sexual jokes and innuendoes, sexual solicitations and his exposure of pornographic material in the workplace.

21This Board also considers that hugging or patting by an employer or supervisor of employees who have not indicated their consent to such physical contact can be a prelude to or part of an environment of sexual harassment. This is certainly true in the context of the two complaints in this case.

22There is now substantial human rights jurisprudence which establishes that a poisoned work environment can amount to discrimination on one of the prohibited grounds stated in s. 5(1) of the Code, including discrimination on the basis of sex (see Lee v. T.J. Applebee's Food Conglomeration(1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.) (poisoned environment on the basis of racial discrimination); Ghosh v. Domglas Inc., unreported decision of the Ontario Board of Inquiry, 1992 [now reported 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216] (poisoned environment on the basis of differential treatment due to handicap); Cox v. Super Great Submarine & Good Eats (1981), 1981 CanLII 4327 (ON HRT), 3 C.H.R.R. D/609 (Ont. Bd.Inq.) (poisoned environment based on sexual discrimination which also involved persistent sexual grabbing and touching despite the complainant's objections)).

23This Board also concludes that the poisoned work environment created by the respondent was further aggravated by the youth of the claimants and the fact that Mr. McGuire took advantage of their age and inexperience (see Hall v. Sonap Canada(1989), 1989 CanLII 9071 (ON HRT), 10 C.H.R.R. D/6126 (Ont. Bd.Inq.)).

B. Sexual Harassment

24Section 7(2), formerly s. 6(2) of the Code, states:

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.

"Harassment" is now defined in s. 10 of the Code as follows:

[E]ngaging in a course of vexatious comment or conduct, that is known or ought reasonably to be known to be unwelcome.

25The precise nature of the above provisions were examined in Cuff v. Gypsy Restaurant(1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.).

This Board concludes that all the components of sexual harassment defined in the Cuff decision have been proved in these two complaints.

26There has been more than one event of unwelcome sexual comments and conduct towards both complainants by the respondent. However, this Board would find the single outrageous event of the showing of a pornographic film in full view of the young unsuspecting complainants in the workplace by the respondent sufficient to constitute a course of conduct amounting to harassment.

27The above mentioned behaviour by the respondent was certainly vexatious, subjectively from the complainants' perspective and objectively from a reasonable person's perspective. The complainants gave evidence that they did not welcome his comments or conduct and asked him to desist. This is a paradigm case of sexual exploitation by an older man of inexperienced and innocent 15-year-old employees.

28This Board concludes that the human rights jurisprudence in this area permits a finding that the youth of the complainants compounds the vexatious nature of the respondent's behaviour and weighs heavily against the possibility that the respondent did not know or could not reasonably be expected to know his comments and conduct was unwelcome (see Hall, supra; Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd. unreported decision of Ontario Board of Inquiry, 1992 [now reported 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311]).

29This Board also concludes that the fact that the two complainants left their employment due to the respondent's conduct amounts to constructive dismissal (see Coutroubis v. Sklavos Printing(1981), 1981 CanLII 4303 (ON HRT), 2 C.H.R.R. D/457 (Ont. Bd.Inq.)). Even though Mr. McGuire stated that he did not "hold their jobs over their heads," it is clear that in order to continue working in his Truck Stop, they had to endure persistent sexual touching, comments, innuendoes and on one occasion exposure to pornographic material. The fact that Darlene Jackson endured this poisoned environment longer than the two days that Lee Anne Bruce worked there is of little importance. Ms. Jackson testified that she continued working as long as she did because she needed the money. The similar fact evidence provided at the hearing by two other young female employees of the respondent, Wendy Alexander, who worked for approximately eight months and Wendy Selle, who worked for approximately seven months, indicated that the price for any young woman to earn a small salary from the respondent was to endure for as long as they could a poisoned work environment. The length of time they endured such a work environment should not be a source of prejudice against them.

This Board finds therefore that by creating a poisoned work environment due to sexual harassment, the respondent eventually effected a constructive dismissal of the two complainants.

C. Sexual Solicitation

30Section 7(3), formerly s. 6(3) of the Code, states:

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 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.

This Board concludes that Mr. McGuire did make sexual solicitations and advances to the complainants. He was in a position to grant or deny a benefit by offering pay-raises or firing them. Ms. Bruce testified that the respondent offered her a raise after one particular incident of sexual touching.

31However, this Board concludes that the structure of s. 7(3) of the Code does not require proof of the elements of both s. 7(3)(a) and s. 7(3)(b). The two subsections are disjunctive. Therefore the respondent is in violation of s. 7(3)(a) if he is a person who is in a position to deny, confer or grant a benefit o[r] advancement to an employee if he knows, or ought reasonably to know, that such solicitation or advance is unwelcome. There is no need to prove an actual reprisal or threat of reprisal under s. 7(3)(b).

32This rightfully places employers, or any person who is in a position to deny, confer or grant a benefit or advancement to an employee, on notice that in a workplace environment they indulge at their peril in potentially unwelcome sexual solicitations or advances towards employees. The unequal positions and power imbalances between employees and employers or senior officials necessitates this standard of behaviour in the workplace environment.

Therefore, this Board concludes that the respondent is also in violation of s. 7(3), formerly s. 6(3) of the Code.

IV. REMEDIAL MEASURE

33This Board, for the reasons stated above, finds the respondent in breach of ss. 5(1) (formerly s. 4(1)), 7(2) (formerly s. 6(2)), 7(3) (formerly s. 6(3)) and s. 9 (formerly s. 8) of the Code.

34Section 41(1) of the Code grants a board of inquiry extensive remedial powers for infringement of the Code. This includes the power to order restitution for loss arising out of infringement. Restitution in the context of loss of employment means the complainants should be placed in the position they would have been in, if they had not suffered the violation of their rights under the Code and so felt compelled to leave the poisoned work environment. The Board should, however, take into account the duty of the complainants to mitigate their losses.

35The complainants testified they earned between $85 to $100 per week. Ms. Jackson testified she was out of part-time work for six months and Ms. Bruce testified that she was without part-time employment for eight months. Both complainants stated that they searched diligently for alternative employment and listed for the Board the places they had applied to but were turned down. Both complainants convinced the Board they were hampered in their search for the work because they had filed a complaint against the respondent under the Code. The size of the town in which they lived meant that, in all probability, virtually all potential employers had heard of the nature of the complainants [sic] and had probably made a judgment as to the validity of the complaints.

36This Board therefore assesses the first head of damages at the higher amount of $100 per week for Ms. Jackson for twenty-four weeks which would result in restitution damages of $2,400. Taking the higher amount of $100 per week for Ms. Bruce, the amount of damages is assessed at $3,200 for her thirty-two weeks without part-time employment. For a similar assessment of damages in a sexual harassment case, see Cuff, supra, at D/3983.

37Section 41(1)(b) (formerly s. 40(1)(b)) also permits the assessment of general damages for mental anguish.

38Several factors have been suggested as relevant for a board of inquiry to take into account in determining the award for mental anguish.

In Torres v. Royalty Kitchenware Ltd.(1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.), these factors were stated as follows:

(1) The nature of the harassment, that is, was it simply verbal or was it physical as well?

(2) The degree of aggressiveness and physical contact in the harassment;

(3) The ongoing nature, that is, the time period of the harassment;

(4) The frequency of the harassment;

(5) The age of the victim;

(6) The vulnerability of the victim; and

(7) The psychological impact of the harassment upon the victim.

39The reason why general damages for mental anguish is particularly merited in both complaints in this case is because the facts indicate that all the elements listed in the Torres decision are applicable in this case.

40The respondent's behaviour that has been found in violation of the Code was both verbal and physical. In the case of Ms. Jackson, the respondent's behaviour began even at the interview stage when she was asked irrelevant and illegitimate questions about her personal life. The harassing behaviour of the respondent was aggressive and involved persistent and frequent unwelcome physical contact with the complainants over relatively short periods of time. This Board also considers that the exposure of pornographic material in the workplace is an aggressive form of sexual harassment. The age of the complainants at the time of the harassment (they were both 15 years old) also aggravates the vulnerability of the two victims and the psychological impact of the harassment upon them. Both complainants testified they were scared because they were totally inexperienced with this type of behaviour by an older man. Further evidence of the psychological impact of the harassment was that they did not want even their parents to know about it. Moreover, Ms. Bruce testified that she was so affected by her experience with the respondent, that she did not want to work anywhere with men because of the incidents. Even at the hearings, almost three years after the incidents, both complainants were deeply angry, upset and could not hold back tears when describing the behaviour of the respondent. This Board awards $2,500 to each of the respondents for mental anguish. A smaller amount has been awarded in other cases (see Waroway, supra). The mental anguish of the two complainants in this case is perhaps even more aggravated than in the Waroway decision, because of the younger age of both complainants and the fact that in a small town like Cobden, Ontario, there are greater obstacles to be faced in mitigating losses and coming forward with the human rights complaints.

41However this Board has decided not to award any pre-judgment interest, as it cannot be said that it is the respondent's fault that it took almost three years for the two complaints to get to this Board. Moreover, this Board has quite generously calculated the special damages for lost wages and mental anguish.

42Finally, this Board orders that, should the respondent open any future business establishments in Ontario, he must report to the Ontario Human Rights Commission the hirings and resignations of any female employees so that the work environment can be monitored. It will be at the discretion of the Commission when such monitoring can cease. The respondent must also post the preamble and ss. 5, 7 and 9 of the Ontario Human Rights Code in any business premises from which he may operate.

V. ORDER

43It is ordered that:

(1) The respondent pay Ms. Bruce special damages in the amount of $3,200 for lost wages.

(2) The respondent pay Ms. Jackson special damages in the amount of $2,400 for lost wages.

(3) The respondent pay Ms. Bruce the sum of $2,500 for mental anguish as a result of discriminatory behaviour in violation of the Ontario Human Rights Code.

(4) The respondent pay Ms. Jackson the sum of $2,500 for mental anguish as a result of discriminatory behaviour in violation of the Ontario Human Rights Code.

(5) If the respondent should open another business establishment, he must report to the Ontario Human Rights Commission the hirings and resignations of any female employees. The respondent must also post the preamble and ss. 5, 7 and 9 of the Ontario Human Rights Code on any business premises which he operates from.