Wall v. University of Waterloo

Date: 1995-03-31

Ontario Board of Inquiry

Beryl Wall Complainant

and

Ontario Human Rights Commission Commission

v.

University of Waterloo and Gary Embro Respondents

Date of Complaint: February 16, 1990

Date of Decision: March 31, 1995

Before: Ontario Board of Inquiry, Frederick H. Zemans

Decision No.: 95-014

Appearance by: G. Sanson, Counsel for the Commission C. Riggs and A. Raso, Counsel for the Respondent University of Waterloo R. Sands, Counsel for the Respondent Gary Embro

SEXUAL HARASSMENT — sexual advances by supervisor — poisoned work environment — definition of sexual harassment — EMPLOYMENT — obligation to provide discrimination-free workplace — Wall test for reasonableness of employer investigation — REASONABLE ACCOMMODATION — interaction with co-worker restricted — test for reasonable accommodation — LIABILITY — employer liability for supervisor — vicarious liability — INTERPRETATION OF STATUTES — definition of "harassment" and "vexatious" — PROCEDURE — hearing under publication ban until decision rendered

Summary: The Board of Inquiry finds that Gary Embro sexually harassed Beryl Wall while he was her supervisor in the Mathematics Faculty Computing Facility (MFCF).

Shortly after Beryl Wall was hired in 1980 she complained to the Director of the MFCF, Dr. John Morris, that in the course of training her and supervising her work, Mr. Gary Embro touched her inappropriately, putting his hand on her thigh, standing close to her, and putting his arm around her. Dr. Morris held an interview with Mr. Embro, informed him that a complaint had been made regarding his conduct and warned him not to engage in any similar harassing conduct with female employees.

After this, for a number of years, relations between Mr. Embro and Ms. Wall were satisfactory. However, in 1987, a week prior to Christmas, Mr. Embro kissed Beryl Wall on the mouth twice though she protested. Also in 1988 two more incidents occurred in which Mr. Embro kissed or attempted to kiss Ms. Wall. In 1989, there was a further incident and Ms. Wall complained to the Dean of the Faculty of Mathematics, Dr. Jim Kalbfleisch.

About one month after making her complaint, the University, Mr. Embro and Ms. Wall signed an agreement. Mr. Embro apologized for his conduct and the terms of the agreement specified that Mr. Embro's office would be moved to another floor away from Ms. Wall; that Mr. Embro would not visit the floor on which Ms. Wall worked between the hours of 8 a.m. and 3 p.m.; that if communication was necessary between Mr. Embro and Ms. Wall, Mr. Embro would communicate by e-mail or a third person would be present; that Ms. Wall's work would be evaluated and supervised by another employee of the Faculty, and that the terms of the agreement would not be changed without consultation with Ms. Wall.

Ms. Wall and Mr. Embro worked for a few months under the terms of the agreement, and avoided contact with each other. However, one day Ms. Wall met Mr. Embro in the cafeteria while she was getting coffee. She also received an e-mail message from him asking her to indicate her plans for holidays for the coming year. This contact caused serious distress to Ms. Wall and she asked the University to dismiss Gary Embro, or to allow her to go on sick leave until Mr. Embro retired in fifteen years, or to pay her compensation and give her a letter of recommendation in exchange for her resignation. The University did not accede to these requests. Ms. Wall resigned.

The Board of Inquiry finds that Ms. Wall was sexually harassed by Gary Embro. Mr. Embro's conduct was unwelcome, and it falls within the definition of a course of harassing conduct in the Ontario Human Rights Code.

The Board of Inquiry considers the issue of the liability of the University for the harassment. Though the Supreme Court of Canada in Canada (Treasury Board) v. Robichaud held that employers can be held responsible for discrimination by a co-worker, s. 45 of the Ontario Human Rights Code seems to bar an employer from being found vicariously liable for harassment by a co-worker.

However, the Board of Inquiry finds that in a number of Ontario cases decided subsequent to Robichaud, Boards have ruled that if the employee has the authority to make decisions that seriously affect the victim of harassment, that employee is a part of the directing mind of the employer, and the employer can be found liable for the acts of the employee.

In this circumstance, the Board of Inquiry finds that Mr. Embro made recommendations to the Personnel Department regarding salary increases and promotion for Ms. Wall, and he was in a position to make decisions which would seriously affect her. Consequently, the Board of Inquiry finds that Mr. Embro and the University of Waterloo are jointly liable for the harassment.

The Board of Inquiry also finds that the University took reasonable steps to address the harassment, and consequently it declines to award Ms. Wall compensation for her loss of employment. The Board of Inquiry awards her $3,500 for mental anguish and infringement of her rights, with interest on the award of $2,206.17. The total award is $5,706.17.

Cases Cited

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 148, 175, 181

Canada (Human Rights Comm.) and Bouvier v. Canada (Human Rights Tribunal) (1992), 1992 CanLII 1429 (CHRT), 17 C.H.R.R. D/313 (Can.Trib.): 8

Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 149, 158, 160, 172

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.): 7

Chuba v. Canada (Human Rights Comm.) (1983), 1983 CanLII 4708 (CHRT), 4 C.H.R.R. D/1416 (Can.Trib.): 157, 160

Commodore Business Machines Ltd. v. Olarte (No. 2) (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 (Ont. Bd.Inq.): 48

Cuff v. Gypsy Restaurant (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.): 137, 176

Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.): 159

Donaldson v. 463963 Ontario Ltd. (1994), 1994 CanLII 18429 (ON HRT), 26 C.H.R.R. D/335 (Ont. Bd.Inq.): 179

Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326: 7

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 148, 153

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 154, 160

H.W. v. Kroff (July 22,1976), (B.C. Bd.Inq.) [unreported]: 9

Hall v. Sonap Canada (1989), 1989 CanLII 9071 (ON HRT), 10 C.H.R.R. D/6126 (Ont. Bd.Inq.): 177

Henwood v. Gerry Van Wart Sales Inc. (1995), 1995 CanLII 18155 (ON HRT), 24 C.H.R.R. D/244 (Ont. Bd.Inq.): 172

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 138, 150, 172

Lampman v. Photoflair Ltd. (1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.): 142, 175, 181

Lee v. T.J. Applebee's Food Conglomeration (1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 (Ont. Bd.Inq.): 159

Morgan v. Toronto General Hospital (October 14,1977), (Ont. Bd.Inq.) [unreported]: 9

Naugler v. New Brunswick (Liquor Comm.) (1976), 105 A.P.R. 650, 40 N.B.R. (2d) 650 (N.B. Bd.Inq.): 9

Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175: 8

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 136

Persaud v. Consumers Distributing Ltd. (No. 1) (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont. Bd.Inq.): 151, 154, 157, 160

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 137, 152, 160

Slobodian v. Adam's Warehouse Burlington Ltd. (1994), C.H.R.R. NP/94-68 (Ont. Bd.Inq.): 178

Torres v. Royalty Kitchenware Ltd. (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 (Ont. Bd.Inq.): 176, 179

Willigan v. Wendy's Restaurants of Canada Inc. (1989), 1989 CanLII 9046 (BC HRT), 11 C.H.R.R. D/119 (B.C.C.H.R.): 157, 160

York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360, 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 175

Legislation Cited

Canada

Canadian Human Rights Act, S.C. 1976—77, c. 33: 149

Ontario

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

s. 5: 172

s. 5(1): 1, 147

s. 7: 172

s. 7(2): 1, 135, 141

s. 7(3): 3

s. 9: 1

s. 10(1): 135, 141, 172

s. 38(1): 1

s. 41: 174, 180

s. 41(2): 149

s. 41(3): 149

s. 44(1): 147

s. 45: 151, 158

s. 45(1): 148, 157

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 9: 8

Manitoba

Human Rights Act (The), S.M. 1974, c. 65: 150

Authorities Cited

Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992): 8

1I was appointed on February 14, 1994, by Elaine Ziemba, Minister of Citizenship with Responsibility for Human Rights, Disability Issues, Seniors' Issues and Race Relations pursuant to subsection 38(1) of the Human Rights Code (hereinafter referred to as the "Code") to form a board of inquiry to hear and decide the complaint of Beryl Wall, dated February 16, 1990. Ms. Wall's complaint alleges that her rights to equal treatment with respect to employment without discrimination because of sex, and to freedom from harassment in the workplace because of sex by another employee, have been infringed in contravention of ss. 4(1), 6(2) and 8 of the Code, 1981, as amended [S.O. 1981, c. 53, now ss. 5(1), 7(2) and 9 of R.S.O. 1990, c. H.19].

PRELIMINARY MATTERS

2The inquiry convened by conference call on March 3 and March 6, 1994, to deal with preliminary matters. On March 3, it was agreed that, to accommodate all parties and their respective counsel, the inquiry would hear evidence in both Kitchener-Waterloo and in Metropolitan Toronto on March 14, 17, 18, 21, 22 and 25. (Because of scheduling, the evidence was heard on March 14, 17, 21, 22, 24 and 25, 1994.)

3It was further agreed that Ms. Wall could amend her complaint to allege discrimination pursuant to s. 7(3) of the Code. As well, counsel for the Human Rights Commission (hereinafter referred to as the "Commission") requested disclosure of further documents and records from the respondent, the University of Waterloo (hereinafter referred to as the "University"). It was agreed that all relevant documents would be provided to Commission counsel.

PUBLICATION BAN

4During the initial hearing on March 3, Gary Embro requested that a publication ban be placed on the evidence to be heard at this inquiry. Mr. Embro was advised that it would be in his best interest to obtain independent legal counsel. It was agreed that the inquiry would continue by conference call on March 6 to hear further argument with respect to the publication ban.

5On March 6, 1994, a conference call was convened at which all parties and their counsel participated. Ms. Rae Sands represented Gary Embro. Counsel for Gary Embro renewed the request that there be a publication ban with respect to Gary Embro, on the basis of undue impact on his public reputation, as he holds elected office on a municipal council proximate to Kitchener-Waterloo. Counsel for the Commission opposed this order. After hearing the arguments, I granted an order that this inquiry be held in public but that there be a non-publication order with respect to the name of the personal respondent, Gary Embro, until this decision is released. Subsequent to my March 6 order, Commission counsel requested that a similar order be made with respect to the publication of the name of the complainant, Beryl Wall.

6At the commencement of the public hearing on March 14, 1994, Commission counsel renewed the request for the non-publication of the complainant's name and at that time, counsel for the University requested a similar order with respect to the University. Counsel argued that to prohibit any reference to one or two parties and not to provide the same prohibition for a third party was unfair.

7There has been a recognition by Ontario boards of inquir[y] that the public at large has an interest in these matters. As well, as stated by Madame Justice Wilson in the Supreme Court of Canada, "Many [litigants] may feel vindicated by the public airing of the injustice they feel they have suffered alone and without any support in the community" (see Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at 1361). Furthermore, within the context of human rights legislation, the opening of a hearing to the public serves to further the educative purposes of the Code (see 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 at D/243 (Ont. Bd.Inq.)).

8Exceptional circumstances must be present if a publication ban is to be granted as the public interest is of significant importance. Although s. 9 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 explicitly permits an in camera hearing, no request for such a hearing has been granted by an Ontario board of inquiry pursuant to the Human Rights Code (see Keene, Judith, Human Rights in Ontario, 2d ed. (Toronto: Carswell, 1992) at 330). Nevertheless, under both the federal and Ontario human rights legislation, tribunals and boards occasionally grant publication bans in lieu of hearing the matter in camera. In Bouvier v. Métro Express(1992), 1992 CanLII 1429 (CHRT), 17 C.H.R.R. D/313, a federal human rights tribunal applied the Supreme Court decisions of Attorney General of Nova Scotia v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175 and Edmonton Journal v. Alberta, supra, to sexual harassment complaints. Bouvier held that while it was inappropriate to grant an in camera hearing, a publication ban was suitable as it protected the respondent from unfair prejudice and damage to its reputation (supra, at D/315). A similar outcome occurred in the 1992 Ontario Board of Inquiry case of Carere v. Family & Children's Services of Guelph and Wellington County (No. 1), supra. After determining that the hearing would be open to the public, Chairperson Morley Gorsky granted a ban barring the media from reporting on the proceedings until the Board released its decision. In doing so, the Chairperson commented on the need to institute such a ban (at p. D.243 [para. 20]):

I am, however, mindful of the potential problems for the respondent agency and recognize that the concerns raised on its behalf, as they relate to the need for a publicity ban, are real. As long as the hearing is open to the public, and the news media is free to report on the proceedings in full once the decision of the Board has been rendered, none of the parties will be, in any way, prejudiced in the presentation of their cases, nor in achieving those purposes intended to be vindicated by a hearing. Once the decision has been rendered, the news media will be free to publish full reports of the proceeding and of the decision.

9For similar reasons, an analogous order to the one in Carere, supra, was employed in H.W. v. Kroff (1976), (B.C. Bd.Inq.) [unreported]. The issue of publication bans within the context of human rights legislation has also been dealt with tangentially in several other cases: see Naugler v. New Brunswick (Liquor Comm.) (1976), (N.B. Bd.Inq.) [reported 105 A.P.R. 650, 40 N.B.R. (2d) 650] and Morgan v. Toronto General Hospital (1977), (Ont. Bd.Inq.) [unreported].

10Upon reviewing the application for a publication ban at the opening of the public inquiry, I indicated that I considered such a ban an extraordinary remedy to be given only in the most exceptional circumstances. I agreed, however, to grant a limited non-publication order. The order was given on the understanding that the publication ban applied only to the names of the parties; that the hearing was open to the public; and that the news media was free to report on the proceedings in full once the decision had been delivered. It was my opinion that none of the parties would be, in any way, prejudiced in the presentation of their cases, nor would this order in any way inhibit a full inquiry of this complaint. I also indicated that I was prepared to review the publication ban during the course of the inquiry.

11On March 22, after hearing four days of evidence, counsel for the Commission reiterated the Commission's and the complainant's concern that the necessity for a publication ban had not been established. Commission counsel was supported by the complainant in requesting the lifting of the publication order with respect to the parties' names. Further argument on this issue was put over to March 25. After hearing further argument, I determined that the order would continue on the same basis as originally ordered. It was my opinion that it would be inappropriate and inequitable to change the order during the latter stages of the public hearing. I was influenced in my decision by the inequity of removing the publication ban after the proceedings had been heard as well as by the fact that all parties had agree to the original order. Ms. Wall indicated that she had only agreed to this order out of a "parity of circumstances." I concluded that none of the parties had been prejudiced in presenting their case or in testing the evidence of opposing parties and that it was appropriate to have the limited order with respect to the publication of the names of all parties continue until the release of this decision.

12It should further be noted that, during closing argument, the complainant expressed her displeasure with the Board's decision to issue a publication ban in the context of several concerns that she had with respect to the hearing and the fact that the Chair was employed by another Ontario university. I asked both counsel for the Commission and the complainant (who participated in closing argument by tele-conference) whether the issue of bias was being raised. The complainant indicated that she was "concerned" but neither Commission counsel nor the complainant wished to raise the question of bias at that time and indicated that they were comfortable in having me render my decision.

THE EVIDENCE

13The complainant, Ms. Beryl Wall, commenced her employment at the University of Waterloo in August 1980 as a full-time computer operator for the Mathematics Faculty Computing Facility (hereinafter referred to as the "M.F.C.F."). Ms. Wall was interviewed by Mr. Gary Embro, Manager of the Operations Department of M.F.C.F. who subsequently recommended her appointment to the then director of M.F.C.F., Professor John Morris. Professor Morris formally communicated the terms of her employment to Ms. Wall. During her nine years with the University, Ms. Wall received numerous positive performance evaluations and pay increases and in 1986 was promoted to senior computer operator. On July 25, 1989, Beryl Wall resigned.

14M.F.C.F. is comprised of three departments: both the Operations and the Hardware Departments are located on the third floor of the University's Mathematics building, and the Software Department is located on the fifth floor. The Computer Operations Department occupies a large area of the third floor and provides computer services to students in the University's math department. Ms. Wall worked in the console area of the computer room — described as a small L-shaped room with two large printers separated by a table. The console area was contiguous to the main computer and was situated behind locked doors. Until renovations to the computer area were completed in the late 1980s, Mr. Embro was the only other person working regularly in this area and as Manager of Operations, he had three to four operators reporting to him and he was responsible to the Director of M.F.C.F.

15When Beryl Wall commenced her employment at the University, she was trained and supervised by Gary Embro. She spent considerable time with Gary Embro during her initial training. As she grew more confident and adept in her job, her contact with Gary Embro diminished though it remained, nonetheless, considerable. In the event of a problem in her area of the Operations Department, she would generally but not always consult Gary Embro. Beryl Wall testified that Gary Embro was her direct supervisor; he conducted her performance evaluations; he determined or confirmed her holidays; and he supervised her daily activities. In 1985, Gary Embro recommended that Beryl Wall "could be promoted one level to that of senior operator" (Exhibit 5).

16Gary Embro testified that he was born and raised in Waterloo, Ontario. At the time of the hearing, he was 53 and had been married for thirty-two years. He was hired by the University on April 1, 1970, as a Coordinator for the Data Processing Department. In 1973, he became Manager of Operations of the M.F.C.F., the position he presently holds. As Manager of Operations, Gary Embro is responsible for providing the Mathematics Faculty with high calibre computing services. In 1980, Mr. Embro supervised three co-op students and two full-time employees, one of whom was Beryl Wall who commenced working at the University on August 20, 1980.

17Gary Embro testified that while he did interview candidates, including Beryl Wall, for the positions he supervised, the University pre-scanned all applicants and pre-selected several candidates for him to consider. He acknowledged that he was only empowered to make hiring recommendations; only the University's Personnel Department had the authority to offer a position to Beryl Wall. Gary Embro testified that he could only recommend employees for promotions, disciplinary actions and termination. The Personnel Department had final authority for such decisions. However, on cross-examination, Mr. Embro acknowledged that his recommendations carried considerable authority (Evidence 4:111).

THE COMPLAINTS

18Beryl Wall testified that the first incident of alleged sexual harassment occurred in 1980 while she was being trained by Gary Embro in the console area. She described the events (Evidence 1:41):

I would be sitting at the console area, Mr. Embro would be explaining things to me, procedures and schedules and how to run things and his hand would end up on my leg or touch the inner part of my thigh with his hand or pen. And I felt very uncomfortable and I would take his hand and move it to the top of the desk or slap it or say, "No" at that point and — but it made me feel very uneasy, very nervous.

19Additionally, Ms. Wall testified that, on another occasion during her first year, Mr. Embro entered the console area where she was retrieving computer output, stood very close to her, and put his arm around her. These actions, she testified, caused her considerable discomfort.

The other incident that happened at that time was when I was in the console area getting output ready to be filed for the students, Mr. Embro would come into the console area and put his arm around me and stand very close to me. That also made me feel very nervous, very uncomfortable ...

It was in the console area and we were behind closed doors and they were — you had to have the key to access these rooms.

20Beryl Wall testified that she was concerned about these incidents but did nothing about them until she spoke to a co-op student and the wife of the chairman of M.F.C.F. — Mrs. Morris — at a Christmas party in either 1980 or 1981. (There was some confusion as to the exact date of these conversations. In my opinion nothing turns on when Ms. Wall spoke to Dr. Morris as there is no dispute that she did speak to him and that he responded.) Beryl Wall was encouraged to speak to Dr. Morris and subsequently made an appointment to meet with him in his office and told him of the two incidents. She testified that she informed Dr. Morris that she "would have to leave my job if something wasn't done" (Evidence 1:46). According to Beryl Wall, Professor Morris agreed that Gary Embro's behaviour was inappropriate (Evidence 1:46):

Mr. Morris took my concern seriously. He investigated the situation and he told me he would — it was inappropriate behaviour and he would do something about it.

21Beryl Wall was not informed of any action taken against Gary Embro, but there were no further situations which she found inappropriate while Dr. John Morris was Director of M.F.C.F. He retired from this position in 1986. After she had spoken to Dr. Morris, Ms. Wall's working relation with Gary Embro "was fine. I never had another problem" (Evidence 1:47).

22Gary Embro became aware of the complaint regarding his behaviour when he was summoned to Dr. John Morris's office in the early 1980s. At that meeting, no mention was made of the specific conduct which was the subject of the complaint or of the identity of the complainant. Mr. Embro testified that he was informed that there had been accusations of inappropriate verbalization, touching and standing too close on his part. He was also informed that he had two options: he could resign, or he was to meet with Dr. Morris again a week later. Gary Embro testified that Dr. Morris did not communicate with him after their initial meeting about this complaint. After one week nothing happened and Gary Embro did not want to pursue the matter any further because he "just wanted to be free of that situation" (Evidence 4:47).

23On cross-examination, Gary Embro testified that he had suspected that Beryl Wall was responsible for initiating the complaint against him in the early eighties. Gary Embro stated that he was not certain what event or events Dr. Morris was referring to in their meeting. This prevented him from making an apology. However, Gary Embro testified that he may have promised that the behaviour described would never happen again. Mr. Embro thought that the allegations may have arisen from a conversation in the hall with two female employees about a Christmas party (Evidence 5:80).

24In Gary Embro's opinion, the incidents in the early eighties were misinterpreted by Beryl Wall. He testified that he only remembers touching Beryl Wall's thigh when he accidentally dropped a heavy operations manual while training her at the console. Gary Embro stated that he was as surprised as Beryl Embro by the accidental physical contact. He testified that he had no recollection of ever having his hand slapped by Ms. Wall, nor of her ever placing his hand on the desk (Evidence 4:70).

25Beryl Wall testified that in 1987 the alleged acts of harassment resumed. A week prior to the scheduled Christmas holidays, Beryl Wall was alone in the console room when she recalls Gary Embro entering and saying, "Have I got something for you" (Evidence 1:48). Beryl Wall testified that Gary Embro then put his arms around her and kissed her "full on the mouth" (Evidence 1:48). Ms. Wall was of the opinion that the kiss lasted longer than a Christmas kiss. This caused her to push him away and she left the room. Gary Embro beckoned her back and kissed her a second time. She recalls pushing him away again and saying "No" and that Gary Embro acted as if nothing had transpired (Evidence 1:48—49).

He beckoned — or he — I'm not sure what the exact words were, but it was something like, "Have I got something for you" and he put his arms around me and kissed me full on the mouth.

I was very — it didn't seem like it was a Christmas kiss to me. It was taking a lot longer than I thought a Christmas kiss should take. I pushed away. I put my hands up to his shoulder and pushed away and I was very, very nervous, very upset ...

No, it was not a Christmas party. It was before — a week before we were all scheduled to be on holidays for Christmas.

So, then I went into the other room. I always tried to move away or to react negatively, but I went into the other room to try and do something else, just so that I wouldn't be in the same room any more with him alone and I turned around through — I went into the machine room door, turned around, came back.

He beckoned me back. Like, just called me over to him and he kissed me a second time, and I said "No." I pushed myself away and just said "No." I was very upset and very nervous. I didn't know what to do.

Then I didn't say anything more to him, but he — it just seemed to me that he acted like nothing happened.

26During cross-examination, there was some discussion as to how Beryl Wall responded to the second kiss. In her complaint to the Human Rights Commission she stated in para. 11 that (Evidence 2: 36 and 38):

We went into the other room and were talking when he went back into the console area and beckoned me to come with him like he had something important to tell me and he kissed me again with a full embrace, so I pushed him away and said, "No, you only get one Christmas kiss."

Beryl Wall agreed that she had made this statement in her complaint but indicated that she did not consider kisses between colleagues appropriate (Evidence 2:39).

27Another alleged incident of harassment during this period occurred in the fall of 1988, when Beryl Wall wanted to get a chair for her office from a store room on the sixth floor of the Mathematics building. She enlisted Gary Embro's assistance. Ms. Wall testified that after using a key to enter the room, Mr. Embro put his arms around her and kissed her. She pushed Gary Embro away and said, "No this is wrong" (Evidence 1:50). Beryl Wall testified that she got the chair and left the room and that Gary Embro acted as if nothing had happened. Again, Ms. Wall recalled that this event left her very nervous and upset.

28Another alleged incident of harassment occurred in the latter part of 1988. While Ms. Wall was putting away materials in the third floor stock room, Gary Embro entered the room closing the door behind him. Ms. Wall testified that (Evidence 1:51):

He said, "Have I got something for you." I turned — I was facing him at the time. I immediately turned around and I said, "No." He said to me, "What did you say?" I said, "I said no." He immediately opened the door and helped me put away stock, like nothing had happened.

While no physical contact had transpired, the event caused Beryl Wall considerable distress. Immediately afterwards, Ms. Wall recounted the event to Mr. Kim Martin, Manager of the Hardware Department of M.F.C.F.

29The final alleged incident of harassment occurred in late 1989. Beryl Wall testified that while discussing work-related matters in the machine room, Gary Embro pounded his fist against a filing cabinet three times and demanded that she "respect" him. Shortly thereafter she went to see Mr. Kim Martin for advice; he suggested that Beryl Wall file a complaint with Ms. Lyn Williams, the Executive Assistant to the Dean of Mathematics, Dr. James Kalbfleisch.

THE UNIVERSITY'S RESPONSE

30Beryl Wall met with both Lyn Williams and the Dean of Mathematics, Dr. Jim Kalbfleisch, on March 7, 1989. (Subsequently, Ms. William became responsible for administering Ms. Wall's sexual harassment complaint.) Ms. Wall recounted the incidents both in the early eighties as well as those of 1987 and 1988 involving Mr. Embro and requested that his office be moved to the fifth floor where he could be observed. Ms. Wall's notes indicate that she understood that the administration of the Mathematics faculty did not consider this request a problem (Exhibit 12).

31Exhibit 10 is a helpful document as it is a record of Lyn Williams' detailed notes, beginning with her March 7 meeting with Beryl Wall, prepared shortly after the meeting. The report contains Beryl Wall's account of the kiss before the Christmas holiday in 1987, the fall 1988 incident in the storage room, and the alleged Christmas 1988 incident in the stock room when Mr. Embro allegedly closed the door and said that he had something for her. Ms. Wall expressed to Lyn William[s] her growing concern about being with Gary Embro and that she had begun to organize her work day to avoid contact with Gary Embro.

32Exhibit 10 concludes as follows:

Beryl Wall reported that she did not discuss these incidents previously because she did not feel she would be believed but that she can no longer continue to work under this duress. She stated quite strongly that she is convinced the sexual advances will continue since Gary Embro feels that John Morris has gone and Gary Embro can now operate in anonymity.

I [Lyn Williams] warned Beryl Wall that she might face some animosity from other staff members about whatever disciplinary action the Faculty of Mathematics may take with regard to Gary Embro. She seemed to feel that she could continue to work in M.F.C.F. if certain safeguards were provided:

(a) reporting to a different supervisor

(b) being unequivocally assured that those in position of authority within the Faculty of Mathematics be able to enforce the cessation of this activity on Gary Embro's part.

Exhibit 10 is signed by both Lyn William[s] and Beryl Wall with the date of March 1989. (These notes were reviewed by Ms. Wall and her husband when she signed them on March 10. Exhibit 27, Tab 3.)

33On March 8, Lyn Williams met with Beryl Wall's husband Rick Wall whom she found to be extremely agitated and angry having only learned the evening before about Gary Embro's treatment of his wife. Rick Wall advised Lyn Williams that "Beryl was emotionally upset and this takes a considerable toll on her emotional well-being."

34Lyn Williams' notes state that on March 8, 1989, she consulted with Denise Angrove, the University's sexual harassment officer. Ms. Williams sought guidance as to how to deal with Beryl Wall's complaint against Gary Embro as well as the difficulties in the work environment in M.F.C.F. The Dean of Mathematics had arranged to meet Gary Embro on March 10 and to inform him of the complaint and of the identity of the complainant. The decision had been made that Gary Embro would be told not to come to work for a week so that "he may provide evidence of his case and/or attitude concerning this issue" and "Beryl Wall would feel comfortable returning to work as of March 13 1989" (Exhibit 27, Tab 3, p. 3). Lyn Williams' notes state further that Beryl Wall's and her husband's request that Ms. Wall report to a different supervisor and that her office no longer be beside Gary Embro's "are under review as potential avenues to pursue when and if Gary Embro returns to the Math Faculty Computing Facility" (Exhibit 27, 1 to 3).

35On March 8, 1989, Lyn Williams met with the Dean of Mathematics to discuss Gary Embro's potential suspension. The Dean had confirmed with the Personnel Office that it was within the purview of reasonable disciplinary action to suspend Gary Embro, pending further investigation of Beryl Wall's complaint. During this meeting, the University's "Blue Paper" on sexual harassment was reviewed with regard to disciplinary procedures in sexual harassment matters. Lyn Williams' notes state that, "These procedures refer to the introduction of warnings and recommendation for counselling except in certain cases including assault" (Exhibit 27, Tab 3, p. 3). On March 9, Lyn Williams was informed by Denise Angrove that the University's Ethical Behaviour policies did not provide for any special disciplinary procedures in its section on sexual harassment complaints.

36On March 10, 1989, Beryl Wall and her husband met with Lyn Williams in order to review the record of the March 8 meeting which they signed. (This is Exhibit 10 discussed earlier.) At that time Beryl Wall alleged that she had a conversation with Gary Embro during which he informed her that her job would not be guaranteed if she took a maternity leave. She further stated that Gary Embro had telephoned her at home when she had been away from work for two consecutive days due to illness. Beryl Wall informed Lyn Williams that she had asked for clarification of the University's sick leave policy. Finally, Ms. Wall indicated that Gary Embro prohibited her (and others in the Operations area) from taking breaks longer than five minutes and requested that she work from 8 a.m. to 3 p.m. without a lunch break (Exhibit 27, Tab 3). These issues were not pursued during the inquiry.

37Beryl Wall also met with Dean Kalbfleisch on Friday March 10. Lyn Williams' notes state that Dean Kalbfleisch was informed about Ms. Wall's anxiety about being around Gary Embro and "her hope that he would not harass her about the charges that she had initiated." She was assured that every effort would be made to provide a working environment in which she could feel safe from harassment of any kind. It was recommended that Ms. Wall consult the Sexual Harassment Officer and seek additional forms of counselling that might help in the "healing process" (Exhibit 27, Tab 3).

38After meeting with the Dean, Beryl Wall and Lyn Williams met alone. They talked in "more general terms about the problematic nature of confronting sexual harassment situations" (Report of Lyn Williams, Exhibit 27, Tab 3).

39Dean Kalbfleisch and Lyn Williams also met with Gary Embro on Friday March 10. The Dean informed Mr. Embro that he had documentation from Beryl Wall "concerning incidents of sexual harassment" and that the Dean expected to receive a letter from Dr. John Morris confirming that Gary Embro had been "warned on a previous occasion not to continue in this behaviour." Gary Embro was informed that he was not to return to work until 1:00 p.m. on March 20, 1989, when he was to meet again with the Dean. Dean Kalbfleisch "strongly recommended" that Gary Embro prepare a written response to Ms. Wall's account of the various incidents. Gary Embro was explicitly warned not to contact Beryl Wall or to enter the Math and Computer Building until March 20. Lyn Williams' notes indicate that Mr. Embro was encouraged to use the time to carefully assess his situation, to get counselling, and to consider measures which "might make it possible to continue working in the same unit as Beryl Wall" (Exhibit 27, Tab 3).

40Gary Embro was provided with a copy of the Vice-President, Academic's memorandum defining sexual harassment as well as a copy of Beryl Wall's account. Lyn Williams' notes state (Exhibit 27, Tab 3):

The Dean reiterated how seriously he was taking this situation and that he intended to forward a complete file containing the original account from Beryl Wall, the letter from John Morris, the eventual response from Gary Embro, and the brief transcripts of discussions that had taken place on this issue to the Personnel Office, the Vice-President, Academic, and Provost, and the Sexual Harassment Officer.

The Dean was not willing to be explicit about what changes he could foresee in the working environment but, at the moment, Beryl Wall would no longer report to Gary Embro as her supervisor and Gary Embro's office would likely be moved away from the immediate area of proximity to Beryl Wall's office. The Dean suggested that Gary Embro might wish to consider how he was going to explain these changes to his colleagues.

The Dean did not preclude the possibility of being influenced in his decisions about the next steps to be taken by any mitigating factors Gary Embro might wish to point out in his own defence. However, he felt that Gary Embro should know that the Dean found Beryl Wall's statement, and her personal appeal to him, to be very convincing.

It was suggested to him that he should provide the details of his interaction with Beryl Wall to the Sexual Harassment Officer, or another counsellor, so that he could have the opportunity to learn how his gestures had been received by Beryl Wall and how they could be considered harassment. In this way he may understand the emotional turmoil that Beryl Wall is undergoing since he seemed to be concerned only with his own sense of outrage and the possibility of this being a black mark on his record.

Gary Embro asked if the week of suspension was to be considered a holiday. He was informed that while his salary would not be interrupted, it was not yet decided whether this would be considered as holiday time.

41Gary Embro agreed to see Denise Angrove, the University's Sexual Harassment Officer, and expressed concern to the Dean about how he would be perceived by his colleagues and other supervisors. He suggested to the Dean that perhaps Beryl Wall was after his job. Ms. Williams' notes indicate that he was "again assured that the Faculty was not interested in pursuing a punitive course of action but was interested in resolving this situation in such a way that a comfortable working environment could be initiated and maintained for Beryl Wall (Exhibit 27, Tab 3).

42Gary Embro testified that he was taken by surprise by Beryl Wall's allegations and recalled his feelings (Evidence 4:66 and 4:67):

I remember that first of all I just went numb and I heard myself saying, "If she wants my job why doesn't she ask for it?" ... I had done nothing wrong and I couldn't see why again, someone was trying to do this to me.

I remember feeling alone. I felt I had been betrayed by a friend. I couldn't really believe it. I was in shock. The room just seemed to be too small. I couldn't breathe.

I felt that after all these years of trying to do a good job, trying to get along and — it was just something that I couldn't take. It completed [sic] destroyed me at that point.

43Gary Embro testified that he was informed that he was being suspended for one week and was not to come near the Mathematics Building. However, there is some ambiguity as to whether this week was treated as a suspension by the University; Mr. Embro only took four weeks vacation that year instead of the five he was entitled to in order to receive pay for the week that he was suspended. During this period, Gary Embro complied with the Dean's request to prepare a response to Beryl Wall's allegations (Exhibit 40).

44With respect to the Christmas 1987 incident, Gary Embro admitted that he kissed Beryl Wall but testified that it was not a long kiss; it was his evidence that it was just a Christmas kiss before they were to leave for the holidays. Mr. Embro further testified that a gentle embrace occurred: "A light embrace had to do with me lightly putting my arms on Beryl's shoulder and her putting her arms around my back, and it was not a tight embrace" (Evidence 4:75). Gary Embro stated that Beryl Wall said that she liked the way he kissed and never said "no" to him. Ten to fifteen minutes later he said that he was leaving and they kissed lightly for a second time (Evidence 4:75).

45According to Gary Embro's testimony, the storage room in which another alleged incident occurred was extremely cluttered. As Beryl Wall had just returned from a three week vacation, he was glad to see her and welcomed her back with a kiss. Gary Embro testified that Beryl Wall did not say "no" and she did not push him away. Mr. Embro testified that he was upset about this complaint as it happened after vacation and "all I was doing was kissing her" (Evidence 4:76).

46With respect to the incident that occurred while Beryl Wall and he were emptying a storage room, Gary Embro recalled entering the room with two empty storage boxes and saying, "I have boxes for you" (Evidence 4:79). When Beryl Wall responded by saying, "Oh, no. Oh, no," Gary Embro took her to mean that she was tired of the work and did not wish to pack boxes any further. Gary Embro did not respond explicitly to the question of whether he noticed if Ms. Wall was experiencing any uneasiness, but he did recall that "she was up against the wall" when he looked at her (Evidence 4:80).

47In reference to the allegations with respect to his pounding his fist on a filing cabinet, Gary Embro testified that he recalled wanting to emphasize a point. In doing so, his hand came down, with an open palm, on an empty cabinet next to him, thereby resulting in an unexpectedly loud sound. In response to Beryl Wall's allegation that he had raised his voice, Mr. Embro attributed his voice to the fact that he was standing next to seven noisy disc drives (Evidence 4:83—87).

48On March 20, 1989, Lyn Williams advised Beryl Wall by telephone that Gary Embro had provided the Dean with an apologetic statement and that she could return to work "in view of his personal determination that such incidents ... of sexual harassment ... would never happen again." To make the working environment as comfortable as possible, Gary Embro's office would be moved out of the Computer Operations area and he would be instructed not to have any conversations or be alone with Ms. Wall. As well, Mr. Kim Martin would become Ms. Wall's supervisor. Lyn Williams assured Ms. Wall that a complete file on the case would be provided to the Vice-President Academic and Provost, the Sexual Harassment Office, the Personnel Office, and be placed in the confidential files of both the Office of the Dean of Mathematics and of the M.F.C.F.

49On March 20, Beryl Wall was informed that Gary Embro would be moved to another office on the third floor. Her notes indicate that she was disturbed by this information as it appeared to her that Gary Embro was not being punished for his conduct and that the University was not taking the matter seriously. She did not return to work at this time.

50On March 21, Lyn Williams was informed by Denise Angrove that Beryl Wall was distressed to learn that Gary Embro's office was to remain on the same floor as her office. Lyn Williams telephoned Beryl Wall to discuss her concerns. Ms. Wall requested that Gary Embro's office be relocated to the fifth floor. Lyn Williams' notes state that Beryl Wall sounded very agitated so she suggested that she not return to work the next day and informed her that she would request Gary Embro to provide a written apology. "This apology would be written directly to Beryl so that she would have confirmation of his recognition of the hurt caused by his actions and his resolution not to repeat them (Exhibit 27, Tab 3, p. 7).

51On the advice of Denise Angrove, Beryl Wall informed Lyn Williams that she would not be returning to work before Gary Embro received a letter from the Dean detailing the measures to be taken with respect to her allegations of sexual harassment. Lyn Williams agreed to this request and suggested that Beryl Wall telephone her on April 3 to confirm that these arrangements had been completed. Lyn Williams indicated that she would obtain a letter from Gary Embro stating that Beryl Wall would be reporting to Mr. Kim Martin indefinitely. Ms. Wall reiterated her objection to any decision that would return Gary Embro to the third floor.

52On March 22, 1989, Lyn Williams suggested that Gary Embro provide Beryl Wall with a written apology to facilitate her return to work. Mr. Embro agreed and brought the letter to Ms. Williams' office within several hours. Mr. Embro testified that he wrote the apology because "I felt that in her mind something must have happened to make her feel that way about me. I wanted to assure her that I'm not the person that was portrayed in her documentation" (Evidence 4:88).

53Gary Embro met with Dean Kalbfleisch and Lyn Williams on March 22. He reviewed his statement and letter of apology and reiterated his regret. He also showed concern about Beryl Wall's insecurity in her work environment and her dislike of him. Gary Embro said that he thought that Beryl Wall had responded in a friendly way to the incidents cited in her complaint. He only remembered her saying "No!" to him during the last incident which took place in the stock room. Gary Embro indicated a willingness to co-operate with any measures the Office of the Dean of Mathematics wished to undertake in terms of relocation of his office and the reduction of possible contact between himself and Beryl Wall.

54Upon questioning, Gary Embro denied that he had threatened Beryl Wall with termination if she took maternity leave and he also denied receiving any calls from Personnel to clarify his interpretation of the University policy as it relates to personal relations. Ms. Williams' notes state (Exhibit 27, Tab 3, p. 9):

Gary Embro understood that if Beryl deemed his attitudes about breaks and time off to be harsh, she could connect it with the sexual harassment she felt she was already undergoing. Gary was at a loss to understand Beryl's reaction as a fearful one, since he did not see himself as being an authoritative manager and that he actually felt intimidated by her because of his previous discussion with John Morris concerning Gary's inappropriate behaviour as a manager. Gary stated, categorically, that there had been no other incidents of kissing or fondling of any other M.F.C.F. employees.

Gary Embro requested that there be classes provided to inform managers about the implications and repercussions of sexual harassment as an issue in the workplace ... Gary is also seeking guidance by continuing to see Jack Williams of the Counselling Office. Gary also expressed a willingness to attend mediation sessions between himself and Beryl in the presence of an objective mediator.

55Gary Embro testified that he had no intention of developing a sexual relationship with Beryl Wall and that he did not intend his actions towards her to be intimidating. He stated that he attempted to look out for Beryl Wall's best interests and his gestures were merely spontaneous tokens of affection which he now understands constituted inappropriate behaviour. Gary Embro confirmed that he would not seek any reprisals against Ms. Wall and that he would try to avoid her as much as possible while being courteous in all his dealings with her. He understood that Kim Martin would be responsible for Beryl Wall's performance evaluations and that the file dealing with Beryl Wall's complaints would be held in a number of University offices.

56On March 22, Beryl Wall informed Lyn Williams that she did not feel secure enough to return to work as long as her office was on the same floor as that of Gary Embro. Lyn Williams indicated that she would discuss Ms. Wall's concerns with the Dean and contact her as soon as possible.

57On March 23, Beryl Wall met with Linda Kellar, a counsellor in the University's Health Services, about these issues and Ms. Wall informed Lyn Williams that the suggestion that Gary Embro remain on the third floor was an unacceptable option in her opinion. Lyn Williams contacted Linda Kellar to discuss moving Gary Embro to the fifth floor. Ms. William[s] indicated that such a move would "render Gary Embro ineffective in his job and would not contribute to removing the threat of chance encounters." Lyn Williams felt that Ms. Wall's request could only be accommodated on a temporary basis (Exhibit 27, Tab 3, p. 11).

58On March 28, 1989, Lyn Williams contacted Bill Ince, Acting Director of the M.F.C.F., about the possibility of relocating Gary Embro to an office on the fifth floor while another employee was on sick leave. The possibility of Gary Embro returning daily to the third floor after Beryl Wall's shift had ended was discussed. Lyn Williams hoped that this arrangement would make it possible for Beryl Wall to return to work.

59On the same day, Lyn Williams discussed the temporary relocation with Gary Embro. Her notes state (Exhibit 2, Tab 3):

He expressed concern that he was effectively being removed as the manager of the Operations area. I [Lyn Williams] reassured him that this was meant to be a temporary measure designed to help Beryl Wall overcome her resistance to return to an environment where there would be a possibility of a confrontation with him on the 3rd floor. He agreed to this temporary office reassignment.

Gary Embro reiterated his interest in mediation sessions in order to defuse the feeling of fear that Beryl has about a confrontation. I informed him that despite the urging of myself, and the Sexual Harassment Officer, Beryl had consistently refused to consider mediation at this time.

60Subsequently, Lyn Williams discussed with Beryl Wall the relocation of Gary Embro's office. Ms. Wall was concerned with the temporary nature of this solution (Exhibit 27, Tab 3):

She expressed the opinion that to be on the same floor with Gary Embro was to subject herself to further harassment. She also assured me that the Operations areas would be able to function satisfactorily with[out] Gary's presence.

At that time, Beryl Wall did not indicate whether she was prepared to return to work under the proposed conditions.

61Denise Angrove telephoned Lyn Williams and requested that they meet with Beryl Wall as the matter did not appear to be going well. Ms. Williams also spoke to the Dean. He hoped that Beryl Wall could become more involved in the process and wanted her to return to work as soon as possible.

62On March 29, 1989, Gary Embro indicated that he wanted to co-operate and had committed himself to a series of appointments with his counsellor. Gary Embro confirmed the accuracy of the report of the meeting he had with Dean Kalbfleisch. Lyn Williams warned Gary Embro of the seriousness of a forthcoming letter of warning from the Dean.

63On March 29, Beryl Wall met with Denise Angrove, Linda Kellar and Lyn Williams. Ms. Wall reiterated her concern over the temporary nature of the University's proposed solution and her desire to avoid any encounters with Gary Embro. Lyn Williams explained that the Faculty wished to provide Beryl Wall with a safe work environment "in order to see her return to work and allow for a resolution of this situation which would, in the future, provide for both Gary and Beryl to work again on the 3rd floor" (Exhibit 27, Tab 3, p. 14). Beryl Wall remained of the opinion that Gary Embro did not need to check the Operations area as part of his daily routine and could remain on the fifth floor indefinitely.

64Lyn Williams was concerned about making Gary Embro's relocation permanent. She believed that a permanent move would have negative repercussions by inciting unnecessary and detrimental speculation within the department. Secondly, a permanent move would perpetuate the "rift" between the two individuals, a rift the Faculty hoped would heal in the future (Exhibit 27, Tab 3, p. 14).

65Lyn Williams noted that Beryl Wall "appeared greatly distressed" at the March 29 meeting. Beryl Wall perceived what had happened to her was tantamount to rape and that the University had not responded quickly enough. Linda Kellar suggested that things would improve if Beryl Wall was to feel that she had some control over extending the length of Gary Embro's removal from the third floor. Lyn Williams indicated that Gary Embro would be relocated to the third floor only after consulting Beryl Wall (Exhibit 27, Tab 3).

66Beryl Wall expressed concern that she had no written assurances as to the precautions being taken. Lyn Williams agreed to ask Gary Embro to provide a written assurance that he agreed to avoid chance encounters with Beryl Wall. Lyn Williams invited Beryl Wall to consult with her regularly and to take any time necessary for counselling appointments (Exhibit 27, Tab 3, p. 15).

67On March 30, Lyn Williams requested Gary Embro to provide a written assurance that he would avoid contact with Beryl Wall. He agreed to provide such an assurance, but indicated that it was essential that he keep in touch with the Operations area at least once a day.

68Beryl Wall telephoned on the same day to inform Lyn Williams of her intention to return to work, as she felt comfortable with the negotiation discussions. However, Ms. Wall requested that Gary Embro receive a letter of warning from the Dean and that Gary Embro provide an undertaking that he would stay off the third floor until after 3:15 p.m. daily. (The Dean had recently informed Lyn Williams that he was concerned about sending a letter to Mr. Embro, without first seeking legal advice.) Lyn Williams indicated to Beryl Wall that she would do her best to provide her with the requested documentation.

69On March 30, Lyn Williams contacted Denise Angrove about Beryl Wall's "agitated and seemingly implacable state" (Exhibit 27, Tab 3, p. 17). Lyn Williams suggested that Beryl Wall be referred to a medical doctor to deal with her sleeplessness and loss of appetite and thought that she should visit an off-campus psychiatrist. Ms. Angrove indicated that medical problems were to be expected in cases of harassment and felt that Beryl Wall's good relationship with Linda Kellar should not be disturbed. Lyn Williams assured Ms. Angrove that she would do her best to secure the documentation with the appropriate assurances that would expedite Beryl Wall's return to the University.

70On March 31, Lyn Williams and Dean Kalbfleisch decided to seek legal advice with respect to the University agreeing to a dismissal of Gary Embro, if there were any further allegations of harassment.

71On April 3, Lyn Williams informed Beryl Wall that the Dean had requested legal advice prior to finalizing his formal letter and also requested that Gary Embro provide a letter stating his intention not to act in any way that would make Beryl Wall feel uneasy or fearful of harassment. Denise Angrove was also informed that a lawyer had been contacted and would be reviewing the letter that would be placed in Mr. Embro's file (Exhibit 27, Tab 3).

72The lawyer reviewed a draft letter as well as Gary Embro's letter of assurance on April 4, 1989. It was recommended that the two letters be combined and rewritten for signature by the Dean, Beryl Wall and Gary Embro. It was legal counsel's opinion that it would be inappropriate for the University to indicate that Gary Embro would face immediate dismissal, if there were any subsequent allegations of harassment (Exhibit 27, Tab 3, p. 19).

73Denise Angrove expressed her concern to Dean Kalbfleisch that Beryl Wall had still not returned to work, as of April 4. Dean Kalbfleisch indicated that Beryl Wall had his personal assurance that she could return to work. Ms. Angrove was concerned over the delay in finding a solution to this matter.

74On April 7, Lyn Williams reviewed the proposed letter of agreement with Denise Angrove. Ms. Angrove indicated her satisfaction with the draft. Lyn Williams also contacted Beryl Wall to inform her that the draft letter was being reviewed by the University's legal counsel and that she anticipated that it would soon be available.

75On April 11, Lyn Williams met with Catherine Scott of the University's Personnel Department. Ms. Scott reviewed the draft letter and felt that "the measures being undertaken were generous to Beryl Wall in terms of accommodating a safe work environment for her to return to work" (Exhibit 27, Tab 3, p. 21).

76Lyn Williams also met with Denise Angrove, Beryl Wall and Rick Wall on April 11. On reading the draft letter, Rick Wall reacted very negatively and indicated that Beryl Wall would not sign. He also requested a copy of John Morris's letter. Beryl Wall was also distressed. Lyn Williams' notes of the meeting state (Exhibit 27, Tab 3, p. 22):

She reiterated her inability to work on the same floor with Gary Embro and her dread that within a matter of weeks he would be returning to the third floor and she could not handle that. She felt that he had ingratiated himself with us [the administration] in a typical manner and that she was being provided with no protection from another imminent incident of harassment ...

I [Lyn Williams] repeatedly assured Beryl Wall that Gary Embro resuming his 8:30 a.m. to 4:30 p.m. occupation of this new third floor office would not be decided upon by the Faculty without prior consultation with her, but that the Faculty's objective was to eventually have both Beryl Wall and Gary Embro working in their previous roles, without the threat of harassment. Beryl Wall stated that this was unacceptable since she could never be in the same room with him or report to him or be evaluated by him.

77At the April 11 meeting, Beryl Wall stated that she would not sign the letter and would not meet with the Dean the next morning, as invited. Beryl Wall responded to the meeting by writing a memorandum detailing the amendments she wished to make to the proposed letter of agreement.

78At the April 11 meeting Denise Angrove articulated some concern with the proposed letter, specifically as to whether it was strong enough in its determination of penalties for Gary Embro should another incident of harassment be reported.

79Gary Embro was also shown the proposed letter of agreement on April 11, by Lyn Williams. He felt that he could sign it and he hoped that it would resolve the situation. Lyn Williams writes (Exhibit 27, Tab [sic]):

He again stated that he did not understand the fear reaction that seemed to be keeping Beryl Wall from returning to work, as he had never expressed violence in any of his behaviour toward her. Gary Embro also reiterated his surprise about the charges being levelled at him in the first place, since he had always felt that their relationship was a mutually friendly one and he had never had any intimation from Beryl Wall that there was anything amiss.

He stated that he felt his career at Waterloo was ruined and that if the matter was pursued in any more stringent a way, then he would have no choice but to contact a lawyer and fight the charges of sexual harassment. He agreed that he was guilty of inappropriate behaviour and bad judgement, but he also referred to his willingness to comply with my requests for office relocation, etc. in the pursuit of resolution.

He was visibly upset during this conversation and I did my best to assure him that we were working toward a speedy conclusion.

80On April 12, Beryl Wall met with Denise Angrove to express her concern with some of the provisions of the proposed agreement. Beryl Wall recalled, in her testimony at this inquiry, that Ms. Angrove informed her that even though it could not be put in writing, Ms. Wall could report to Kim Martin until April 1990. When asked of the consequences of not signing the letter, Beryl Wall was told, "they may have grounds to fire (her)" and that she "was not signing her life away" (Evidence 1:81).

81On April 13, 1989, Lyn Williams met with the Dean, Bob Elliott, and Cath[e]rine Scott as recorded by Lyn Williams (Exhibit 27, Tab 3):

The representatives from the Personnel Office indicated that they felt quite strongly that the Faculty had covered all the bases required for a humane and fair settlement, but it was now time for management to insist that Beryl Wall return to work under the conditions outlined in the letter. Furthermore, the Dean was warned that he should make it very clear that the measures were interim measures and that the ultimate goal of the Faculty was to have Beryl Wall and Gary Embro work well together in the future without any anxiety about sexual harassment.

82Beryl Wall presented a number of suggested amendments to the proposed letter of agreement in a meeting with Dean Kalbfleisch, Denise Angrove and Lyn Williams. It is helpful to consider the amendments that Ms. Wall requested. She wrote as follows (Exhibit 27, Tab 4):

AMENDMENTS TO LETTER APRIL 7/89

The following is a request for changes to be made to the letter.

a) The letter states that Mr. Embro would work out of an office on the fifth floor from 8:00 a.m. to 3:00 p.m. each day.

It doesn't say that he is not to interrupt me in my workplace during this time or that he is not to be on the third floor during this time.

I requested the letter to reflect this to ensure me of a secure workplace.

(The Dean of Math and Lyn Williams both reassure me that this would not happen. If it did I was supposed to go directly to them about it.) [Brackets hand-written]

b) The letter says that Mr. Embro's office shall be relocated to 3011A. The change should say his office has already been moved to 3011 A.

c) Part E say[s] my 1988/89 appraisal will be performed by Kim Martin but doesn't say who I officially report to.

I would like to add that until April 1990, I would report to Kim Martin. This would help to ensure me of a secure workplace.

d) Part 2 say[s] these are interim measures and would not be revised without prior consultation with the employees involved.

I would like to add without prior consultation and agreement with the employee's [sic] involved.

e) Mediation between Mr. Embro and I [sic] is recommended.

I am not emotionally prepared to have mediation with Mr. Embro at this time. I am not comfortable sitting in the same room with Mr. Embro let alone have mediation at this time.

f) I would like to receive written confirmation that the departments stated in the letter, Personnel Office, Sexual Harassment Officer, Vice President Academic and Provost, that they did receive a copy of the following information. The letter of April 7/89 signed by the Dean, Mr. Embro and myself, the initial complaint of March 6/89 from Beryl Wall, the response by Mr. Embro about this complaint, and a recent letter from John Morris the former Director of MFCF which confirms a pervious sexual harassment complaint.

83Lyn Williams' notes outline the Dean's response to these requests:

(a) The Dean felt that the personal assurances received from Gary Embro and his repeated disinclination to encounter Beryl Wall, because of his own vulnerability in such an incident, provided enough of a guarantee that Gary Embro would not approach or interrupt Beryl Wall in her work place on the third floor.

(b) The Dean agreed to alter the letter to indicate that Gary Embro's office had already been relocated to MC 3011A.

(c) The Dean repeated his concern that the Faculty was interested in creating a secure environment for Beryl Wall but that it was also incumbent upon the Faculty to move towards the normalization of the situation in the future ...

(d) The Dean assured Beryl Wall that he would consult with her prior to making any changes in the interim situation but that he could not give any employee veto power over management decisions.

(e) The Dean stressed that he was only recommending mediation and only at a time when Beryl Wall felt she could cope with the emotional strain of such confrontation with Gary Embro.

(f) The Dean agreed that we would request that the offices in receipt of the file acknowledge receipt.

84The Dean indicated that if Gary Embro did appear on the third floor and interfered in any way with Beryl Wall, she was to report immediately to Lyn Williams, Kim Martin or the Dean. Denise Angrove was also available as a support to Wall. Beryl Wall was told that the Faculty would be lenient in terms of her hours while she accustomed herself to the new situation and pursued counselling. The Dean indicated that the Faculty hoped that Beryl Wall would return to work on April 17, 1989.

85Beryl Wall, Gary Embro and Dean Kalbfleisch signed the memorandum of agreement dated April 13, 1989 (Exhibit 16). The memorandum of agreement read as follows:

MEMORANDUM

April 13, 1989

TO: J.A. George, Vice President Academic and Provost

FROM: J.G. Kalbfleisch, Dean, Faculty of Mathematics

With regard to the allegations of sexual harassment brought against Gary Embro, the Manager of Operations within the Math Faculty Computing Facility, by Beryl Wall, the Senior Operator within M.F.C.F., the following actions have been taken or will be pursued in an effort to resolve the situation.

1. I recognize that while there has been no formal hearing procedure followed and while no formal Human Rights complaint has been instituted, all parties seem ready and willing to settle matters in an informal way and on mutually agreeable terms.

If this is not the case, both parties must clearly understand that they have the right to proceed with a formal complaint, complete investigation and a full hearing before the Ontario Human Rights Commission. It should be noted that this proposal is in no way intended as a ruling or determination as to the respective rights of the parties or the merits of either the complainant or the respondent. I advance this proposal simply as a possible solution to a stressful situation in an effort to maintain peace and harmony within the department and to ensure that, if at all possible, the continued employment of both of these valued employees not be interrupted or otherwise jeopardized.

It is essential to ensure that Mrs. Wall feels secure in her working environment and that she return as soon as possible. To that end, the following measures have been discussed (and agreed to by those who sign below). It is also essential that Mr. Embro's position not be jeopardized until and unless such result is clearly proven to be justified, after a full and fair hearing of a formal complaint. It is therefore proposed that the following steps be implemented to protect the rights of all parties involved.

(a) Gary Embro will work out of an office on the 5th floor from 8:00 a.m. to 3:00 p.m. each working day. This will minimize contact between the parties.

(b) Gary's third floor office has been relocated to MC 3011A.

(c) Gary Embro and Mrs. Wall agree that neither of them shall engage the other in direct conversation unless a third party is present.

(d) Generally, essential communications between the Manager of Operations and the Senior Operator will take place through e-mail or messages routed through the Software Manager or the Hardware Manager.

(e) For the 1988/89 performance appraisal procedures the Faculty is currently involved in, Beryl Wall will be evaluated by Kim Martin, the Hardware Manager.

2. These measures listed above are designed to be interim measures to facilitate the ability of both Gary Embro and Beryl Wall to perform their job duties in an atmosphere which is reduced in anxiety and conducive to productive work. These measures will not be revised without prior consultation with the employees involved.

3. I continue to recommend that mediation on this issue take place between Beryl Wall and Gary Embro in an effort to reduce the tension further and to, hopefully, encourage this situation to reach a more complete resolution. Gary Embro has already expressed his willingness to participate in mediation.

4. The documentation on this case which includes this memorandum, a statement of the interview between Beryl Wall and Lyn Williams, a response by Gary Embro and a letter of John Morris, the former Director of M.F.C.F. will be forwarded to the Sexual Harassment Officer, the Vice President Academic and Provost, and the Personnel Office in addition to the file within the Dean's office and the Associate Dean of Computing office for the Math Faculty.

5. In the event that there are any future allegations of sexual harassment brought against Gary Embro I expect it to be brought to my attention immediately. I will then request that a formal inquiry be held to determine the appropriate course of action at that time. It may be advisable to involve a representative of the Human Rights Commission in such an inquiry.

6. The contents of this letter will be reviewed by both Gary Embro and Beryl Wall and their signatures affixed to it indicate that they understand, are in agreement with and [sic] will abide by the measures outlined.

J.G. Kalbfleisch's signature Gary Embro's signature Beryl Wall's signature [Emphasis in original.]

Dated April 13/89 Dated April 13/89 Dated April 13/89

86Beryl Wall returned to her position at the University on April 17, 1989. According to Beryl Wall, everything went well upon her return to work. She received her copy of the agreement on April 21, 1989. On May 5, 1989, Beryl Wall received confirmation that all the other parties had received copies of the agreement. At that time, Lyn Williams informed Beryl Wall that the University had believed her allegation with respect to Gary Embro. Beryl Wall was congratulated for an excellent performance evaluation (Exhibit 8) and mention was made of a possible job reclassification. Ms. Wall was reclassified on June 29, 1989, when her salary was increased from $27,437.04 to $29,376.36 (Exhibit 23).

87Notwithstanding the April 13 agreement, there were still several problems from Ms. Wall's perspective. She regretted the lack of personal interaction between herself and other staff members. Beryl Wall testified that she was preoccupied with leaving the third floor before Gary Embro arrived at 3:00 p.m., so she did not take the time to talk to other staff or students. Ms. Wall believed that her concern about interacting with Gary Embro impacted on her effectiveness and promptness in performing her work. This was particularly the case when she was required to visit the printers on the fifth floor. Ms. Wall was also concerned about chance encounters with Gary Embro when using the stairs.

88On a morning in June 1989, while accompanied by Mr. Kim Martin, Beryl Wall coincidentally encountered Gary Embro at the Davis Centre coffee shop, a large campus cafeteria adjacent to the Mathematics Building. She quickly got her coffee but merely seeing Gary Embro caused her to "immediately cringe" and gave her "an anxiety attack" (Evidence 1:96). Ms. Wall testified that she was upset for days after the chance encounter and could no longer return to this coffee shop. Ms. Wall believed that this event also caused her migraine headaches to resume.

89Beryl Wall cited several medical ailments that she attributed to the situation at work: "I have been experiencing migraine headaches and lower abdomen [sic] pains from stress. I have lost 20 pounds since March 1989 due to mental duress" (Evidence 1:108). Beryl Wall's physician, Dr. Pascoe, suggested that she speak to a counsellor, Barbara Pressman. During a telephone conversation with Beryl Wall, Ms. Pressman suggested that the stress would not go away until the situation at work was resolved.

90In June, Beryl Wall received an E-mail memo from Gary Embro requesting that she furnish him with her holiday schedule for the next year. Beryl Wall testified that this aggravated her anxiety attacks and headaches. Beryl Wall found it necessary to get a doctor's note permitting her to take off the period between June 30 and July 6, 1989 (Exhibit 18). Dr. Pascoe wrote an additional letter to the University on July 6, 1989, to advise them that Beryl Wall would have to take even more time off from work if her predicament was not rectified (Exhibit 19).

91On July 17, Beryl Wall attempted to return to work, but requested that she first meet with the Dean. On July 18 at a meeting with Dean Kalbfleisch, Lyn Williams and Rick Wall, Beryl Wall outlined three potential solutions to her on-going concerns: (1) the University could dismiss Gary Embro; (2) the University could allow her to go on sick leave until Gary Embro retired in fifteen years; or (3) the University could give her a monetary settlement and a letter of recommendation in exchange for her resignation. No decision was made with respect to these suggestions at this meeting.

92When the meeting reconvened on July 21, Dr. Kalbfleisch informed the group that the University could not accept any of Beryl Wall's three demands. With respect to the third solution, the University made it clear that they did not want Beryl Wall to resign but rather had recently given her a promotion and wished her to remain.

93There was evidence before the inquiry that Mr. and Ms. Wall had decided to sell their home some time earlier. Beryl Wall testified that as of July 18, "I think we had just locked in on our sale" (Evidence 1:123). As well, on July 19, Rick Wall had submitted his resignation to the University citing the fact that his ability to perform his job was hampered by his wife's difficulties. According to Beryl Wall's testimony, she had not decided to resign by July 19, despite her husband's decision.

94Upon receiving the University's response on July 21, Beryl Wall contacted both Linda Kellar as well as the Human Rights Commission for advice. At that time, Beryl Wall decided to resign and requested that Dr. Pascoe write a letter delineating her medical reasons for doing so. On July 25, Beryl Wall wrote her letter of resignation (Exhibit 21) and her husband delivered copies of her resignation to the appropriate University administrators on July 26, 1989.

95Upon leaving her employment at the University, Beryl and Rick Wall moved to British Columbia. After looking for work from September 1989 and to [sic] February 1990, Beryl Wall found part-time employment paying approximately $24,000 a year. According to Beryl Wall, the move was necessary to get away from the "mental stress," even though leaving her job of more than nine years was costly in terms of lost seniority and numerous employment benefits. Beryl Wall made it clear that she would have preferred to have continued working at the University, but felt that she had no alternative.

OTHER EVIDENCE

96The decision has principally considered the evidence of the complainant, and where appropriate considered the respondent Gary Embro's evidence with respect to the allegations of harassment. I will conclude with a discussion of the remainder of the evidence at the inquiry.

97Gary Embro testified that when Ms. Wall was employed, he initially spent approximately 90 percent of his time with her. After her orientation period he had limited contact with Beryl Wall, primarily when problems arose. In Mr. Embro's opinion, he had a good working relationship with Beryl Wall. They frequently went for coffee together; occasionally socialized after work; and Beryl and Rick Wall attended Gary Embro's daughter's wedding in 1985.

98Gary Embro testified that while most of Beryl Wall's dealings with faculty, staff and students were cordial, he received some complaints with respect to her attitude and behaviour. He dealt with these complaints by encouraging Beryl Wall to treat others as she wished to be treated herself. The complaints were also evident in Beryl Wall's 1986 performance evaluation in which Gary Embro wrote that her human relations skills needed improvement (Exhibit 6). Despite this evaluation, Beryl Wall received a raise and a promotion to the position of senior computer operator on April 1, 1986 (Exhibits 37 and 38).

99Gary Embro testified that although he and Ms. Wall had limited contact, when he did it "was to pat her on the shoulder and to tell her that she had, you know, that she did a good job on certain things" (Evidence 4:80). Gary Embro did not perceive any negative reactions to this conduct. He testified that at no time did he rub Beryl Wall's back or thigh and he never put his arm around her waist. Gary Embro recalled having complimented Beryl Wall on her perfume scent.

100On cross-examination, Gary Embro acknowledged that Beryl Wall was the only colleague that he had ever kissed. He recalled that Beryl Wall had told him that she had "been chased around" by a manager at a previous job. Considering this, Gary Embro realized that his conduct "might have been unprofessional" but stated that "it happens in every workplace" (Evidence 5:131).

101Gary Embro testified that he apologized "because I felt that in her mind something must have happened to make her feel that way about me. I wanted to assure her that I'm not the person that was portrayed in her documentation" (Evidence 4:88). Gary Embro wanted mediation to take place as he no longer felt that he could trust Beryl Wall. He perceived the agreement was to allow Beryl Wall to feel comfortable returning to work at the University. Mr. Embro stated that he did not have any indication as to how long the arrangement was to last, but believed that it was permanent and would not be changed unless he was told otherwise. He also stated (Evidence 5:149—52),

When I signed this agreement I understood it to be an agreement that was binding on Mrs. Wall, myself and the University, as to the steps that would be taken to get Mrs. Wall back to work and to be able to function again, and also the things that I would have to do to attain that goal ... I understood that those measures would be in place as long as it took for Mrs. Wall to feel secure enough to come back to her position, regardless how long that took.

102Dr. John Morris, the Director of M.F.C.F. from 1980 to 1986, testified by long distance telephone from Scotland, as to his recollections of the first alleged incidents of harassment in the early eighties. Upon being informed of Beryl Wall's complaint and two other females' "consistent experiences," Dr. Morris made informal inquiries which seemed to corroborate Beryl Wall's accusations. Dr. Morris testified that Gary Embro had displayed an "over-familiarity in speech" and had put his arm around Beryl Wall (Evidence 2:136).

103Dr. Morris testified that he held a "formal" interview with Mr. Embro and that (Evidence 2:134):

After some discussions, he accepted that although his actions had not been intended that way, they certainly could have been construed that way. [He] accepted that I had a reasonable grounds [sic] for indicting that the conduct was inappropriate and on that basis in fact he was formally warned.

The warning referred to was merely a verbal one, as Dr. Morris did not think Mr. Embro's actions were severe enough to warrant reporting them to the University authorities. However, Dr. Morris recalled informing Gary Embro that he would have no further excuse to deal with the matter informally if the events were repeated. Furthermore, he told Gary Embro that if it happened again, "his job would be on the line" (Evidence 2:141).

104Ms. Ingeborg Moerth testified that she commenced working for the University in November 1975, in the Engineering Faculty in the Department of Management Sciences. In May 1981, she transferred to the Mathematics Faculty Computing Centre as an Administrative Secretary, for Dr. John Morris. In 1989, Ms. Moerth left the University due to illness.

105Ms. Moerth testified that while working at M.F.C.F. she had occasion to work with Gary Embro, particularly during her first year as he helped her settle into her job. According to Ms. Moerth, Gary Embro occasionally got "a little too close" to her, although it was very subtle. He would touch her leg with his own and he generally displayed affection for women. This conduct made Ms. Moerth feel uncomfortable; however, she never felt in any way threatened. The only time Ms. Moerth discussed Gary Embro's behaviour was when Dr. John Morris questioned her in the early eighties, regarding Beryl Wall's complaint.

106In April 1989, Ms. Christine Marina Roth, an Operations Supervisor at the University, was hired as a computer operator in the M.F.C.F., by Gary Embro. He trained Ms. Roth for one week and Beryl Wall trained her for another two weeks; Ms. Roth took over the senior operator's position upon Beryl Wall's resignation. Gary Embro was Ms. Roth's supervisor.

107Ms. Roth testified that Gary Embro and Beryl Wall appeared to have a professional working relationship. Ms. Roth testified that she never felt uncomfortable around Mr. Embro and, as far as she was aware, other employees felt the same. In fact, Ms. Roth stated that Gary Embro was in her opinion "very understanding towards women in the working place" (Evidence 5:10).

108Ms. Roth testified that University policies and procedures for cases of sexual harassment were published in pamphlet form and available to her and other employees. She attended a presentation on the subject that raised her awareness of the issue and the procedures the University had in place.

109Ms. Christine Ann Gillin commenced working at the University in February 1980 as a secretary in the Mathematics Faculty. Between September 1980 and August 1993, she worked on the third floor of the Math Building as the Administrative Assistant to the M.F.C.F.

110Ms. Gillin testified that she began to have contact with both Gary Embro and Beryl Wall in the early eighties. She had never observed any touching of other employees by Gary Embro, except handshakes. With regard to Gary Embro and Beryl Wall's relationship, Ms. Gillin perceived it to be professional. During the last five years of her employment with the University, Ms. Gillin worked closely with Gary Embro on budget matters. She was left with a positive impression of his relationships with colleagues and subordinates. In Ms. Gillin's opinion, Gary Embro did not act negatively towards women. Furthermore, while Ms. Gillin felt that she may have been a potential recipient for any grievances against Gary Embro, none were registered with her.

111Ms. Lyn Williams-Keeler, the Executive Assistant to the Dean of Mathematics Faculty from July 1982 to July 1990, was responsible for faculty budgets, space allocations and personnel matters involving non-tenured faculty including evaluations, information dissemination and hiring procedures. At the time, the Math Faculty was comprised of 148 faculty, eighty-five staff and had research and operating budgets of between five and fifteen million dollars.

112Lyn Williams testified that she spoke with the Director of M.F.C.F. whenever necessary; they did not find it necessary to have regular meetings but rather met with respect to specific staff evaluations and equipment acquisitions. She communicated with the various managers in the Faculty, including Gary Embro, on matters related to budgets, space allocation or staff evaluations.

113Lyn Williams testified that she was directly involved in staff human resources issues including hiring, altering staff classifications and staff evaluations. She described her role in the evaluation procedure (Evidence 5:199—200):

... within the Faculty there was strong inclination to keep the evaluations consistent, in terms of the measures used and the approach used in applying those measures. So all of the evaluations, I would give out the material to all of the Directors or Department Chairs and explain to them sort of the overriding considerations I wanted them to keep uppermost in their minds while they were working on these. And then when they were finished I would sit down with the Managers and go through everything with them.

114Ms. Williams provided guidance and assistance in the preparation of staff evaluations that ultimately required the approval of the Dean. In 1987, Lyn William[s] met with Gary Embro to discuss Ms. Wall's job evaluation at a time when Mr. Embro recommended her reclassification as a senior operator in order to increase her stature and give her greater responsibility.

115Lyn Williams first met with Beryl Wall on March 7,1989, regarding Gary Embro's conduct. She testified that she was "sort of the unofficial sexual harassment officer for the faculty" (Evidence 6:17). Based on this meeting, Lyn Williams determined that the matter was serious. Her assessment was based on the University's "Blue Paper" on sexual harassment that had been distributed by the Provost three months prior to the meeting and the fact that it was not the first time Gary Embro had been the subject of a complaint. A memorandum on sexual harassment policies from the Vice-President Academic, Dr. George, dated November 1, 1988 (Exhibit 27, Tab 14), a brochure on the topic and an ethical behaviour statement reflected existent policies of the University. Because of the seriousness of the complaint, Ms. Williams began keeping a record of the various meetings and actions with respect to this matter. On March 8, Lyn Williams followed the guidelines in the Blue Paper and contacted the University Sexual Harassment Officer, Ms. Angrove, to act as a resource to assist her in determining the appropriate managerial response to Ms. Wall's complaint. Ms. Angrove was also requested to provide guidance and assistance to Beryl Wall.

116Lyn Williams testified that she did not doubt that this was an incident of sexual harassment, and stated, "I wanted it clear that we were doing our utmost to be responsible citizens and managers within the community of the University of Waterloo" (Evidence 6:15). Ms. Williams testified that she was in contact with the Dean and Beryl Wall (who was at home until the April 13, 1989, agreement was signed) on a daily basis. Ms. Williams described her approach during the period between March 5 and April 13: "I would continue to try and ameliorate the situation and I would not take any action to ... do anything further disruptive to her ..." (Evidence 6:22).

117Lyn Williams recalled attending the meeting with the Dean and Gary Embro on March 10, 1989. According to her, the Dean was very upset and informed Gary Embro that his behaviour towards Ms. Wall was unacceptable and that it was never to be repeated. Gary Embro was told to take a week off and this week was to be considered a suspension. She states, "we certainly did not want (Beryl Wall) feeling that (Gary Embro) was still going to be her supervisor and we also wanted to put physical distance between the two of them" (Evidence 6:26). Both Ms. Williams and the Dean felt that Gary Embro's apology was genuine but were concerned regarding his future dealings with Ms. Wall. Consequently, they insisted that he obtain counselling.

118Lyn Williams testified that she intended the memorandum of agreement that she drafted and dated April 13, 1989 (Exhibit 16), to be a resolution of the situation (Evidence 6:35):

... there was a fundamental agreement on what had taken place and on what would be done to ensure that it would never take place again and that the environment was safe for Beryl to come back to work. We meant it to be the ultimate statement on the resolution, so that no other document would be necessary ... And it was a safeguard that should there be a repeat offence, that retaliation would be swift and strong, based on the fact that everything had been so clearly documented and agreed to by both parties about past behaviour.

119Ms. Williams' evidence was that she attempted to be responsive to Beryl Wall's requests with respect to moving Gary Embro's office and prohibiting him from visiting the third floor during Beryl Wall's shift. When Beryl Wall expressed concern that Mr. Embro was being moved to the fifth floor for only three weeks, Lyn Williams found an office on the fifth floor that could be used indefinitely. Ms. Williams saw the memorandum of agreement confirming Kim Martin as Beryl Wall's supervisor, although the agreement only referred to the performance evaluations. Lyn Williams testified that the agreement was drafted with the hope that there would be an eventual rapprochement between Beryl Wall and Gary Embro. No time frame was established, but the Dean felt that "separate" working environments was not feasible on a permanent basis. Ms. Williams testified that the purpose of the "prior consultation" provision was to prevent the University from moving Gary Embro back to the third floor without extensive discussions with Beryl Wall. Finally, to assure that the complaint did not go undocumented, as had been the case in the early eighties, the agreement provided that it would be filed in various locations.

120Lyn Williams believed that after its execution, the agreement appeared to be working; Beryl Wall returned to work; and there was no contact by her with Gary Embro. In May, Beryl Wall informed Ms. Williams that the arrangement was satisfactory, although Lyn Williams acknowledged that Beryl Wall's disposition was not what it had been. However, after the accidental encounter with Gary Embro in the coffee shop, Beryl Wall made three new requests. From the University's perspective, these requests were unreasonable. The Mathematics Faculty considered that a safe working environment had been created for Ms. Wall and that Mr. Embro was complying with the provisions of the agreement. Ms. Williams felt that the University had done all that it could reasonably do to address Ms. Wall's concerns.

121Dr. James Grant Kalbfleisch joined the Faculty of Mathematics of the University of Waterloo in 1964 as a lecturer; became a full professor in 1971; Chair in 1975; Dean of the Faculty of Mathematics in 1986; Associate Provost, Academic Affairs in 1990 and in 1993, the Vice-President, Academic and Provost. Dr. Kalbfleisch testified that he had little or no contact with Gary Embro prior to receiving Ms. Wall's complaint. While serving as Dean, Dr. Kalbfleisch dealt principally with academic and budgetary matters, leaving personnel matters up to Ms. Williams, his Executive Assistant.

122Dr. Kalbfleisch first met with Lyn Williams with respect to Beryl Wall's complaint on March 8, 1989. He met with Gary Embro on March 10, 1989, to inform him personally of the charges and of the University's policies with respect to sexual harassment. Gary Embro was prohibited from returning to work until March 20,1989, in order to remove him from the workplace and to allow him time to prepare a detailed response to Beryl Wall's charges. His week's suspension was intended as a punishment. After this meeting, Dr. Kalbfleisch and Ms. Williams discussed this matter daily as it was one of their major concerns at the time. He also met with Beryl Wall on several occasions.

123According to Dr. Kalbfleisch, "I never had any doubt ... that inappropriate behaviour had taken place in the workplace ..." (Evidence 6:181). His concerns were two-fold: he wished to provide Beryl Wall with a safe workplace and he needed to ensure that the Computing Facility was able to provide the necessary services required by the Faculty. He indicated that although Dr. Morris's recollection of the events in the early eighties was vague, his letter stated that "... there was a history and that we needed to be especially vigorous in pursuing this case" (Evidence 6:196).

124Dr. Kalbfleisch testified that he was aware of the November 1988 memorandum on sexual harassment from then Vice-President, Academic, Dr. George, which included procedures for dealing with such complaints. There were also brochures and posters on the topic. Additionally, the Ethical Behaviour Policy specifically mentioned sexual harassment (among other matters) and "It sets the tone for the campus, in terms of our attempts to provide for a workplace that is free of harassment and discrimination" (Evidence 6:184). The Ethical Behaviour Policy provided for the establishment of an Ethics Committee which could assist in the informal resolution of disputes or provide formal adjudication.

125Dr. Kalbfleisch testified as to his perception of the Memorandum of Agreement dated April 13, 1989 (Evidence 6:185—86):

The purpose of the provisions, well A through D, was to try to reassure Ms. Wall that there would not be direct personal contact between herself and, that the, any necessary contact between them would be conducted through E-Mail or if absolutely necessary, through, with the presence of a third person. The final point E, made another senior Manager in the (M.F.C.F.) responsible for her performance appraisal. Again removing the direct supervisor authority that he had.

Dr. Kalbfleisch recommended that the agreement provide interim arrangements because he believed that Ms. Wall and Mr. Embro could eventually reconcile their problems. The Dean felt that having Gary Embro on the fifth floor was considerably less than ideal as his job required him to be on the third floor where he could supervise operations. Dr. Kalbfleisch realized that conciliation might not occur for "months" or even longer and there would need to be prior consultation of all the parties before it could take place. Dr. Kalbfleisch recommended mediation "to ease the discomfort that there was between them" and to eventually allow the parties to work together.

126Dr. Kalbfleisch testified that the University wished to avoid the general rule which provided that disciplinary letters only remain in personnel files for two years. Rather the agreement was placed in five different locations to help make Beryl Wall feel that she would have a safe workplace. No letter was delivered to Gary Embro directly, although one was drafted (Exhibit 13), because the agreement was intended to be comprehensive and its wide distribution to the Dean and the Vice-President removed the necessity of a letter.

127Dr. Kalbfleisch was aware that Beryl Wall returned to work shortly after the agreement was executed and he believed that the agreement was working effectively. He was surprised when Beryl Wall came to him in July 1989 with three further options. Dr. Kalbfleisch testified that he did not consider it appropriate to fire Gary Embro as he had been disciplined and was complying with the terms of the agreement. As to Ms. Wall's request for long-term disability leave, he had informed her that she could have up to six months leave under the short-term disability plan (the maximum allowed). However, the University had no control over a longer-term sick leave as it was provided by the University's insurance carrier. Finally, the University wished Ms. Wall to continue at the University and did not want to encourage or facilitate her resignation.

128Dr. Kalbfleisch testified that rather than a formal complaint being brought up to the Ethics Committee, an informal resolution was pursued in anticipation of bringing the parties back together: "We felt that it was possible to work out an understanding between the parties that would allow Ms. Wall to return to work and give some time for the situation to heal" (Evidence 6:199). When asked whether the temporary measures were preferable to long-term measures, Dr. Kalbfleisch stated that he did not think dismissing Gary Embro was appropriate and there were no positions to which he could be moved.

129Dr. Michelle A. Paludi, a psychologist specializing in workplace and academic sexual harassment matters since the mid-1980s, testified as an expert witness before the Board of Inquiry. She explained that sexual harassment occurs in two forms. The first, "quid pro quo harassment," consists of an individual in a supervisory position demanding sexual favours of another person in return for a positive evaluation, a promotion, etc. The second, "hostile environment sexual harassment," involves subjecting someone to intimidation, offensive behaviour, or hostility so as to interfere with the individual's ability to perform his or her job. Dr. Paludi also described a continuum of sexual harassment. This spectrum starts with gender harassment, progresses to seductive behaviour, continues to sexual bribery, moves to sexual coercion, with sexual assault being the final and most severe form.

130Dr. Paludi testified that victims of sexual harassment may suffer from "Sexual Harassment Trauma Syndrome," a malady research psychologists compare to post-traumatic stress disorder, a mental-illness recognized by the American Psychiatric Association. The syndrome may affect an individuals' mental and physical health, career development, and interpersonal relationships. With respect to Ms. Wall's situation at the University, Dr. Paludi stated that the syndrome, and the fear associated with it, may have contributed to any delay in the reporting of the incidents. Victims of sexual harassment often try to control the situation themselves by altering their appearance or behaviour before they will seek a resolution of the issues within the workplace.

131Dr. Paludi testified as to the need to employ a "reasonable" woman standard, as each gender has a tendency to perceive a single incident differently. Men and women tend to differ when it comes to determining whether certain conduct is acceptable or whether it constitutes sexual harassment. Upon review of the facts, Dr. Paludi concluded that Gary Embro was suffering from this misunderstanding and there had been a pattern of behaviour that constituted sexual harassment (Evidence 3:47 and 50).

132Dr. Paludi considered Beryl Wall's response to the situation was not unusual or excessively emotional. Furthermore, Dr. Paludi also testified that the symptoms experienced by Beryl Wall (detailed in Exhibits 19 and 20) were common to women who have been subjected to sexual harassment in the workplace.

133With regard to Beryl Wall's requests, Dr. Paludi felt that they were reasonable. Dr. Paludi was also of the opinion that they were not met by the University in the agreement. Rather, Dr. Paludi stated that the University's "incessant need to have them brought together" through mediation "defies the research on sexual harassment and in my opinion exacerbated the symptoms that Ms. Wall was experiencing" (Evidence 3:96). Furthermore, the steps provided for by the agreement were only interim measures which failed to provide for any strong "closure" of the situation. As such, this contributed to some of Beryl Wall's anxiety about returning to work.

134Dr. Paludi also criticized the University's sexual harassment policies and handling of the matter. The sexual harassment material distributed to the University employees (Exhibit 11) was faulted for its lack of any statement describing the impact of sexual harassment, the absence of an assurance that retaliations would be dealt with, its failure to disclose a time-frame for dealing with allegations, and its deficient instructions detailing the procedures involved in filing a complaint. In her expert opinion, the procedures had to be "user friendly." Dr. Paludi also criticized the University for opting not to use its formal procedures as there were repeated accusations of sexual harassment involving Gary Embro. Finally, Dr. Paludi disagreed with the University's investigation of this matter, as Ms. Williams, the principal representative involved, was unsure of the procedures and did an inadequate job. On cross-examination, Dr. Paludi testified that, based on the facts confronting it, the University of Waterloo's response fell outside the range of reasonable responses.

LIABILITY

135The Ontario Human Rights Code, R.S.O. 1990, c. H.19 provides that all employees are entitled to freedom from harassment in the workplace:

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.

136The Supreme Court of Canada in Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 547 [7 C.H.R.R. D/3102 at D/3105, para. 24766] states that we must:

recognize in the construction of a human rights code the special nature and purpose of the enactment ... and give to it an interpretation which will advance its broad purposes.

137In Cuff v. Gypsy Restaurant(1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 (Ont. Bd.Inq.), Professor A.F. Bayefsky emphasized that the prohibiting of sexual harassment in the workplace recognizes that the dignity of an employee requires treatment and opportunity which is independent of sexuality ([D/3980] para. 31517). In Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.) Professor H.A. Hubbard again stressed that the Code is to be interpreted liberally in light of its preamble, which makes it the public policy of Ontario to "recognize the worth and dignity of every person" and to create a "climate of understanding and mutual respect ... so that each person feels a part of the community and able to contribute to [its] development and well being" ([D/54] para. 130).

138In Janzen v. Platy Enterprises Ltd.(1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205, a decision of the Supreme Court of Canada from Manitoba, Mr. Justice Dickson at D/6227, para. 44451 [and at D/6225, para. 44444] states:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.

Common to all these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

139Chief Justice Dickson in Janzen, supra, refers to one of the earliest set of guidelines dealing with sexual harassment, produced in 1980 by the American Equal Employment Opportunity Commission (Guidelines on Discrimination Because of Sex, 29 C.F.R. 1604.11(a) [1985]), which "have been quoted with approval by courts and human rights tribunals in both the United States and Canada" (D/6225, para. 44445):

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment, when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

140Chief Justice Dickson further writes that finding sexual harassment under Canadian human rights legislation is not dependent upon the presence of tangible employment consequences (D/6226, para. 44447):

Emerging from these various legislative proscriptions is the notion that sexual harassment may take a variety of forms. Sexual harassment is not limited to demands for sexual favour made under threats of adverse job consequence should the employee refuse to comply with the demands. Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from their employment as a result of their refusal to participate in sexual activity. This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of sexual harassment, albeit a particularly blatant and ugly one. Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions and inappropriate comments, but where no tangible economic rewards are attached to or involved in the behaviour.

141Section 7(2) of the Code prohibits sexual harassment in the workplace. There are three elements of "harassment" according to the definition of that term in s. 10(1). There must be "a course of ... comment or conduct," it must be "vexatious," and the respondent must have known, or should reasonably have known, that it was "unwelcome."

142I must initially determine whether Gary Embro's conduct constituted sexual harassment. To find sexual harassment under the Code, I must find evidence of its three components. "Course of conduct" suggests more than one event. Can a series of isolated incidents be combined appropriately so as to be considered to constitute "engaging in a course of vexatious comment or conducts"? In Lampman v. Photoflair Ltd.(1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.) Professor McCamus determined that [D/207, para. 60]:

it appears obvious that a series of actions, though perhaps dissimilar in some sense, occurring on different occasions which are similarly motivated, as where they constitute a sustained attempt by the perpetrator to accomplish a particular objective, would appear to be properly characterized as a "course of conduct." Further, a series of similar incidents which involves conduct which is offensive for similar reasons would appear to constitute a "course of conduct" in the requisite sense.

143Beryl Wall testified to a number of isolated incidents of alleged sexual harassment. The first acts took place in the early eighties and involved Mr. Embro touching the inner part of her thigh, as well as placing his arm around Ms. Wall. The incidents in the late eighties included standing close, putting an arm around Ms. Wall and the kissing incidents. In my opinion, the incidents described by Ms. Wall, particularly the two kissing incidents in 1987 and 1988, were offensive and inappropriate and constituted a "course of conduct" in the requisite sense. I accept Ms. Wall's recollection of the complained events in 1987 and particularly the fall of 1988. Both Ms. Wall and Mr. Embro were credible witnesses but where there are discrepancies in their testimony, I accept Ms. Wall's recollection of the events in question.

144"Vexatious" clearly import a subjective element into the definition of harassment. The comment or conduct must be annoying, distressing or agitating to the complainant. The acts of the respondent Gary Embro were clearly distressing or "vexatious" to Beryl Wall. Mr. Embro testified that he suspected that it was Ms. Wall who had complained about his behaviour in the early eighties; he therefore should have been aware that she found his behaviour disturbing. There is no doubt that his conduct distressed Beryl Wall and that Mr. Embro should have realized from her response to his inappropriate behaviour that Ms. Wall considered his physical touching and kissing to be inappropriate.

145I am satisfied that the two instances of touching and kissing initiated by the respondent Gary Embro during 1987 and 1988 constituted sexual harassment in breach of the Code, despite the fact that these incidents were some months apart. As I will discuss below, it was not a severe course of sexual harassment as is usually recounted in board of inquiry decisions on this subject, but it was sexual harassment nonetheless.

146Gary Embro became aware of the first complaint regarding his behaviour when he met with Dr. John Morris in the early eighties. His testimony stated that he believed that Ms. Wall was the person who had complained to Dr. Morris. It is clear that, from this point on, Gary Embro ought to have known that his actions were upsetting to and unwelcome by Beryl Wall. The complainant indicated to Gary Embro that his kissing her at Christmas 1987 and in the fall of 1988 was not appreciated. Gary Embro's conduct constituted sexual harassment in that it was a course of vexatious conduct that was known or ought reasonably to have been known to be unwelcome. Gary Embro was in a position of power and his conduct detrimentally affected the work environment and created a hostile and offensive working environment for Beryl Wall.

THE UNIVERSITY'S LIABILITY

147Having found Gary Embro to have sexually harassed Beryl Wall, I must now address the claims made by Ms. Wall against the University of Waterloo. There are two arguments mounted against the University: the first under s. 44(1) claiming that as Mr. Embro's employer, the University is vicariously liable for his actions and secondly that regardless of my finding with respect to vicarious liability, the University can and should be found to have discriminated against Ms. Wall pursuant to the provisions of s. 5(1) of the Code, which provides for 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.

148Section 45(1) of the Code allows employers to be held vicariously liable for the act of their employees, except in situations of harassment:

45(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 44(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

Recent decisions in Ontario have modified the somewhat harsh result of this section with respect to sexual harassment. If an employee considered to be a "directing mind" of the corporation is found to have harassed a co-worker while performing a corporate function, the employer may be held personally liable for the contravention of the Code under the organic theory of corporate liability. This liability is subject to consideration of the reasonableness of the employer's response to the incident(s). [See Olarte v. Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705 at D/1741 (Ont. Bd.Inq.), Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2194 (Ont. Bd.Inq.) and Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 at D/2800—D/2802 (Ont. Bd.Inq.).] As stated by Professor Cumming in Fu at D/2801 [para. 22922]:

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. [Emphasis added.]

149The Supreme Court of Canada had occasion to comment upon the issue of corporate responsibility in Robichaud v. Canada (Treasury Board)(1987), 1987 CanLII 73 (SCC), 8 C.H.R.R. D/4326. In that case, which dealt with the Canadian Human Rights Act, S.C. 1976—77, c. 33, as amended, La Forest J. determined that the purpose of human rights legislation is remedial: "Its aim is to identify and eliminate discrimination" (at D/4331 [para. 33940]). Under the Act, an employer's liability did not have to be based on either the concept of fault or on the doctrine of vicarious liability developed under the law of tort (at D/4331—D/4332). Instead, La Forest J. held that the only way to fulfil the remedial objectives of the federal Act, and thereby prevent subsequent instances of discrimination or harassment was to allow the ss. 41(2) and (3) remedies to be enforceable against employers (at D/4333). He went on to state (at D/4333, para. 33944):

Hence, I would conclude that the statute contemplates the imposition of liability for all acts of their employees "in the course of employment," interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions. [Emphasis added.]

150Janzen v. Platy Enterprises, surpa, which dealt with sexual harassment within the context of the Manitoba Human Rights Act, S.M. 1974, c. 65, was one of the first cases to comment upon and apply La Forest J.'s decision in Robichaud, supra. Dickson C.J.C. felt that the judgment in Robichaud "... expanded upon the meaning to be given to ”˜course of employment' ...," as it should not be limited to just those activities which fall narrowly within an employee's job description (at D/6234 [para. 44466]). In Janzen, the employer was found liable for the acts of its employee, as it was their responsibility to ensure that the power they had conferred upon him was not abused (at D/6234 [para. 44467]).

151A detailed discussion of the Supreme Court's decision in Robichaud, supra, was undertaken by Professor Peter Cumming in Persaud v. Consumers Distributing Ltd.(1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23 (Ont. Bd.Inq.). As discussed earlier, in Ontario, corporate liability for breaches of the Code is separated between cases involving discrimination and those which involve harassment. Professor Cumming held in Persaud (at D/28) that since Robichaud, in cases of discrimination an employer can be held responsible, "... even where those acts of discrimination are committed by mere servants (i.e. non-management and non-supervisors) against fellow servants and which are unknown to management." But, unlike the federal Act in Robichaud, s. 44(1) of the Ontario Code (now s. 45) prevents employers from being found vicariously liable in instances of harassment. Professor Cumming concludes, however, that the organic theory of corporate liability can be applied to harassment situations notwithstanding the Ontario Code (at D/28 [paras. 43, 45 and 46]).

For the organic theory to be operative, the wrongdoer must be part of the "directing mind" of the employer corporate entity, and the offending acts must occur in the course of carrying on the employer's business. As sexual harassment situations commonly involve a supervisor or person otherwise in authority abusing that authority, as in Robichaud, supra, the criteria of the organic theory would often be met in any event.

Thus, under the Ontario Code, unlike the federal Act as interpreted by the Supreme Court of Canada in Robichaud, supra, there is not vicarious liability in harassment situations. Therefore, in respect of Ontario human rights law the organic theory of corporate responsibility remains very pertinent in harassment situations.

Why did the Ontario legislature except "harassment" from the operation of the new vicarious liability provision, — s. 44(1)? One can only speculate. Perhaps the legislature was of the view that vicarious liability for non-harassment discrimination is fair, because it typically is seen through business decision and practices that ought to be known and guarded against: for example, hiring practices, membership rules, and methods of providing services. However, harassment is less predictable in respect of specific employees, and preventable in the relative sense Perhaps the concern is that an employer can and should always be familiar with its business practices, for example, the application forms prepared by its staff, but even with educational and preventive programs and effective supervision, may encounter situations of sexual or racial harassment it cannot reasonably know about until an aggrieved employee advises the employer. When the employer is made aware of harassment reasonable steps must be taken promptly to eradicate it.

The racial slurs which gave rise to the complaint in Persaud were held to be a personal matter between the employees rather than a condition of employment permitted by the employer. As such, liability was not extended by the Board of Inquiry to the employer.

152Shaw v. Levac Supply Ltd., supra, provides further insight into corporate liability of employers for harassment. The Chair, Professor H.A. Hubbard, noted that "fault" was the rationale for an employer's liability in that employers would be vicariously liable for acts of their employees done "in the course of employment" and harassment could hardly be regarded as conduct done in the course of employment (at D/66). However, Robichaud, supra, made it clear that the fundamental purpose of this legislation is to provide remedies. Hubbard concluded (at D/67 [para. 233]) that s. 44(1) served to create an "artificial shield" which exempted corporations from liability (in cases of harassment).

Thus, where an employee infringes any provision of the Code other than ss. 4(2), 6, 43(1) [now ss. 2(2) [sic], 5(2), 7 and 44(1)] the employer will be liable if the act of infringement was "in any way related to or was associated with the employment," regardless of what might have been the position at common law under the doctrine of vicarious liability. But if the infringing conduct was simply harassment it is not to be deemed to be an act of the employer, even if it was in some way related to or associated with the employment. While in my opinion this points to a serious weakness in the Code, it follows that Levac Supply cannot be liable for the harassment of the complainant unless the "organic theory" of corporate responsibility applies.

153While s. 44(1) could not be ignored, Professor Hubbard suggested that the section contravened the remedial purpose of the Code and prevented employers from having to provide employees with a "healthy work environment." Despite this problem, an employer could still be held responsible for acts of harassment perpetrated by one of its employees under the "organic theory" of corporate responsibility (at p. D/67). Professor Hubbard found that the corporation in Shaw v. Levac Supply Ltd., supra, could potentially be held responsible under the "directing mind" theory developed in Fu, supra, as the fourth of seven types of circumstances in which harassment by the employer might be found (D/2801, para. 22922 [of Fu]):

(4) Where the employer is a corporate entity, and an employee is in contravention of the Code, and the 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 ...

For example, in another case under the former legislation, Dhillon v. F.W. Woolworth Co. Ltd. (1982), 3 C.H.R.R. D/206 where the management in a warehouse "knew or should as reasonable men acting as management have known, that there was regular, and significant verbal racial harassment" and "did not take reasonable steps to put an end, or at least minimize, the racial abuse", the Respondent corporation was held to be in breach of the Code.

154The organic theory of corporate liability was discussed further by Professor Hubbard in Ghosh v. Domglas Inc. (No. 2)(1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 at D/224—D/225 (Ont. Bd.Inq.). In doing so, Hubbard sought to clarify what constituted the "directing mind" of the corporation. He again referred to Professor Cumming's comprehensive discussion of corporate liability in Fu, supra, and referred to both categories 4 [quoted above] and category 5 of the decision [D/2801, para. 22922]:

(5) The difficulty in applying the organic theory of corporate responsibility (as referred to in #4) comes in the factual determination as to whether an employee in question is part of the "directing mind." Gadhoke illustrates the obvious case — the individual respondent was the sole manager, the owner, corporate officer and corporate director. Other situations are not as easy. Generally speaking, whenever an employee provides some function of management, he is then part of the "directing mind." Once an employee is part of the directing mind, and the contravention of the Code comes in his performing his corporate function, the corporation is itself also personally in breach of the Code.

Professor Hubbard acknowledges that the difficulty with the definition of Professor Cumming is that it leaves open the question as to what qualifies as a management function for these purposes. Professor Hubbard in Ghosh writes at D/224 [para. 54]:

In my opinion, whether one employee is part of the directing mind of a corporation when dealing with another does not depend solely on their relative ranks within the organization. While the suggestion that, "generally speaking, whenever an employee provides some function of management, he is then part of the directing mind" is sound and helpful, it leaves open the question as to what it is that qualifies as a management function for that purpose. The "obvious case" is that of the supervisory "employee" who owns the company and exercises all management functions ... Having regard to the nature and purpose of human rights legislation, I should think it sufficient in principle that the harassing employee was in a position to make decisions on behalf of the company seriously affecting the victim. [Emphasis added.]

Hubbard writes that in light of the Supreme Court of Canada's decision in Robichaud, supra, and "having regard to the nature and purpose of human rights legislation, I should think it sufficient in principle that the harassing employee was in a position to make decisions on behalf of the company seriously affecting the victim." In Ghosh Professor Hubbard suggests a further step to the analysis, by questioning whether the employee's "... contravention of the Code came in his [or her] performing his [or her] corporate function so that the corporation is itself personally in breach of the Code" (at D/225 [para. 57]). This is consistent with the approach taken by Professor Cumming in the Persaud case, supra, at D/28.

155The question that I must address is whether Mr. Embro can be considered to have been considered to be part of the "directing mind" of the University. Counsel for the University strongly argued that although he accepted the "organic theory" of corporate responsibility in harassment cases under the Code, he did not think it should apply in these proceedings against the University. University counsel agreed that Mr. Embro "had responsibility" for several full-time employees and for some co-op students. But counsel argued that he had very limited authority to: offer positions to employees, terminate employees; discipline employees; promote employees and provide merit increases. Although University counsel agreed that all of these tasks are traditional indicia of managerial authority, in each of these examples Mr. Embro only had authority to recommend. The difficult question for me to determine is whether Mr. Embro's authority to recommend with respect to these important aspects of employment was sufficient to be considered part of the "directing mind" of the University because Mr. Embro's recommendations could "seriously affect" Ms. Wall's employment. University counsel argued that the authority to handle Ms. Wall's performance evaluation resided not with Mr. Embro but with Ms. Lyn Williams, who provided uniformity within the Faculty, by receiving the draft performance evaluations, including Mr. Embro's, reviewing the recommendations, making amendments when necessary, and ultimately making the final determination for each employee.

156After consideration, I do not accept the University's argument on this issue. I agree with the reasoning of Professor Hubbard that the organic theory of corporate responsibility must be interpreted broadly and the question of whether a supervisor's actions or decision can impact or "reason- ably affect" another employee should be given liberal interpretation. In this case, all of Mr. Embro's decisions may or may not have been reviewed but nonetheless Mr. Embro's recommendation was critical to Beryl Wall receiving an increase in salary or a change in employment status. I have determined that the University is responsible pursuant to the Code, for the acts of sexual harassment of Gary Embro.

157There is some question as to whether employers can take steps which prevent any finding of personal liability for the acts of their employees. The fact that s. 45(1) specifically does not extend to cases of harassment suggests a recognition by the legislature that harassment in the human rights context was considered difficult for employers in larger organizations to monitor and more importantly to prevent (see Persaud, supra, at D/28). In many cases, however, this simply is not an issue because the corporate organization does little either to educate its employees or to prevent harassment. In these instances, there should be no bar to holding the corporation liable under the organic theory. However, where a corporation does take steps to provide employees with a harassment-free workplace, it is necessary to determine whether those steps were adequate. Kotyk v. Canada Employment and Immigration Commission (1983), 1983 CanLII 4708 (CHRT), 4 C.H.R.R. D/1416, a decision of the Canadian Human Rights Tribunal, under their legislation, made note of a number of considerations which one could weigh against an employer's response to instances of harassment. At D/1430 [para. 12249] the Tribunal stated that "... managers and supervisors must themselves be aware that sexual harassment is prohibited conduct under the Act." The matter must also be dealt with seriously, "... as a potential breach of a statute" (at D/1430 [para. 12249]). Furthermore, a complaint mechanism must exist and employers must advise their supervisory and managing personnel of the consequences of sexual harassment (D/1430). Furthermore, Wilgan v. Wendy's Restaurants of Canada Inc.(1989), 1989 CanLII 9046 (BC HRT), 11 C.H.R.R. D/119 at D/122 [B.C.C.H.R.] suggests that employers are obligated to advise complainants of management's actions. Counsel for the Commission argued that the question of "reasonableness" is relevant only to the discussion of damages and not to the question of liability.

158The question of the conduct of an employer once liability has been determined has not been discussed at length in the case law. The direction of recent decisions is clearly to hold employers responsible for the actions of their employees in human rights cases, with limitations as discussed above under the Ontario Code because of the restrictions in s. 45. Perhaps the most relevant comments are those of La Forest J. in Robichaud, supra [at D/4334, para. 33946]:

I should perhaps add that while the conduct of an employer is theoretically irrelevant to the imposition of liability in a case like this, it may nonetheless have important practical implications for the employer. Its conduct may preclude or render redundant many of the contemplated remedies. For example an employer who responds quickly and effectively to a complaint by instituting a scheme to remedy and prevent recurrence will not be liable to the same extent, if at all, as an employer who fails to adopt such. These matters, however, go to remedial consequences not liability.

I adopt the reasoning of La Forest in Robichaud and I have concluded that the question of the "reasonableness" of the University's response to Ms. Wall's complaints only goes to the question of quantum of damages and particularly Ms. Wall's claim for loss of income. The "reasonableness" of the University's response to the allegations of harassment made by Beryl Wall was the focus of much of the evidence of this inquiry. Ms. Wall alleges that it was the University's inappropriate and tardy response to her concerns that ultimately caused her to leave the University's employment. I must determine whether the University's response to this sexual harassment complaint was so unreasonable that it should be found liable for Ms. Wall's claim for damages and specifically for Ms. Wall's claim for loss of income.

159Counsel for the respondent University argued that employers can only be held to a standard of reasonableness in their response to incidents of harassment. This view is supported by the case law in terms of racial harassment. In Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 at D/762, para. 6718 (Ont. Bd.Inq.), Professor Cumming states, "The employer has a duty to keep the work environment free of racial insults and must take reasonable steps to stop them." This portion of Dhillon was applied in Lee v. T.J. Applebee's Food Conglomeration(1987), 1987 CanLII 8496 (ON HRT), 9 C.H.R.R. D/4781 at D/4787 (Ont. Bd.Inq.).

160Counsel for the University further suggested that Canadian human rights decisions refer to six elements of reasonableness with respect to corporate responsibility. The first is an obligation of promptness in dealing with a harassment complaint. (This obligation is discussed in the Persaud, Levac, Domglas and Robichaud decisions, supra.) Secondly, there must be an awareness by the employer that sexual harassment is prohibited conduct, an issue discussed in the Kotyk decision, supra. Thirdly, the matter must be dealt with seriously. (This issue is discussed in the Kotyk and Wendy's decisions, supra.) Fourthly, a corporation must demonstrate that there is a complaint mechanism in place, as discussed in both the Kotyk and Wendy's decisions. The fifth consideration is the obligation to provide a healthy work environment, as discussed in the Robichaud decision. And finally, there is an obligation for management to communicate its actions to a complainant, as articulated in the Wendy's decision.

161University counsel argued that I must consider not only the reasonableness of the University's actions but also recognize that there must be a range of reasonable responses. He relies upon the Persaud decision as well as the Supreme Court of Canada decision in Robichaud, supra. University counsel urged me not to make my decision on the basis of how I might have handled Ms. Wall's complaint or that, with the benefit of hindsight, I would have acted differently in the circumstances of the evidence in the inquiry.

162On the question of reasonableness, I will consider the arguments of the University's counsel as well as the criticism of the University's actions put forward by the Commission counsel, Ms. Wall and Dr. Paludi. The first consideration raised was the promptness of the University's response. Dr. Paludi testified that Beryl Wall's delay in bringing her complaint to the attention of the administration was understandable and was quite typical of women involved in various types of worked [sic] related sexual harassment. Ms. Wall did not feel that the University acted expeditiously enough in handling her complaint. Dr. Paludi supported this concern and further testified that the agreement entered into did not adequately bring closure to Ms. Wall's complaint. Counsel for the University strongly argued that the complaint was handled in a timely fashion between March 7, 1989, when Ms. Wall complained to Lyn Williams and April 13 when the agreement was signed by Ms. Wall, Mr. Embro and the University. During the intervening period of time, numerous meetings were held between Ms. Wall and Lyn Williams, as well as with the University's Sexual Harassment Officer. The decision to move Mr. Embro to another floor and the terms of the agreement had been worked through. Although not entirely acceptable to Ms. Wall, these decisions were the result of negotiations in which Mr. Embro had clearly indicated a willingness to do anything requested by Ms. Wall. Moreover, the University had involved the former Dean, legal counsel, the current Dean, and the Senior Administrator, as well as members of the faculty and staff of a major faculty. I conclude that to have reached an agreement that was acceptable to all parties in slightly more than a month was an expeditious dispute resolution process and an indication that the University addressed the situation in a serious and realistic fashion.

163The second consideration of the "reasonableness" of the University's actions is the extent to which the University of Waterloo, at the time of this complaint, was addressing the issue of harassment and providing appropriate resources. Counsel for the University underlines the fact that the University had hired a full-time Sexual Harassment officer whose services were made available to Ms. Wall. As well, sexual harassment counsellors were made available to both Beryl Wall and to Gary Embro. Ms. Kellar and Mr. William are full-time employees of the University and they were utilized on the encouragement of Ms. Lyn Williams. As well, throughout the period after March 6, Ms. Wall was provided with sick leave and, as late as July 21, 1989, she was informed that such sick leave would be available to her. I find that the University had implemented policies and hired personnel which clearly indicated that it was concerned about sexual harassment generally as it impacted upon both its employees and students. As well, I find that the University, once it was made aware of Ms. Wall's allegations, allocated significant resources and considerable time of both its sexual harassment staff and the senior administration of the Mathematics Department to addressing her complaints.

164The third aspect of "reasonableness" is whether the University took Ms. Wall's complaint seriously. University counsel argued that in addition to its investigation, there were the numerous meetings, telephone calls and negotiations to attempt to "bring closure" to the dispute. There were fifteen meetings between Ms. Wall and Ms. Lyn Williams as well [as] with Ms. Angrove, Ms. Kellar and Dean Kalbfleisch. The University's administrators also met with Gary Embro, on numerous occasions. University counsel urges me to find that from the outset the University accepted that the conduct on Gary Embro's part was unacceptable and that there was at no time a suggestion that Ms. Wall was the author of her own misfortune or that she had acted improperly. The University argues that it at all times recognized that Ms. Wall had in no way contributed to her problems with Gary Embro. The University further argued that from the outset it recognized the importance of establishing a harassment-free environment for Ms. Wall. The University urged me to find that, once Ms. Wall's complaints were brought to the attention of the Faculty of Mathematics, it was unthinkable that Gary Embro would engage in any kind of further conduct which could be considered harassment. As well, the University argued that the other women called at the hearing testified to Gary Embro's good character and that to the extent that there was impropriety, it was out of character. I have no difficulty in finding that the complaint was dealt with seriously by the University and there was clearly an indication that they wished to provide an environment that would allow Ms. Wall to continue working at the University.

165The fourth aspect of "reasonableness" is whether the University had an adequate complaint mechanism in place. University counsel argued that Ms. Wall was aware of the procedure for complaints within the Faculty. As well, University counsel referred to the November 1, 1988, memorandum sent to all faculty and staff. This memorandum announced the appointment of a full-time Sexual Harassment Officer and set out the procedures to be followed in case of a complaint. University counsel further argued that Ms. Wall followed the procedures established by the University which counsel stated were at all times known by her. In addition to the sexual harassment policy, the University also had in place an ethical behaviour policy which included a formal hearing process.

166University counsel urged me to find that the University procedures for sexual harassment as well as her rights pursuant to the Code were known by Ms. Wall. Dr. Paludi in her testimony criticized the university instructions as being deficient regarding the procedures involved in filing a harassment complaint. Dr. Paludi also criticized the University for not opting to commence formal procedures in the circumstances of this event. I find that the University had a reasonable complaint procedure in place at the time of this complaint. Ms. Wall was directed to Lyn William[s] within her Faculty as well as to the Sex Harassment Officer. Her testimony and actions indicate that she was aware of the University's various procedures for sexual harassment and that she was provided with adequate counselling and advice.

167With respect to the fifth aspect of "reasonableness," the question is whether the University provided a healthy work environment. This issue goes to the heart of the disagreement and concern on the part of the complainant. From the outset, she pressed to have herself separated from Gary Embro and to be placed in a working environment where she would have little or not contact with him. (It is perhaps most appropriate to state that Ms. Wall wished to have no contact with Mr. Embro while she was at the University.) The University came to the conclusion that Mr. Embro's actions were not of such a severe nature that he could be dismissed and that he was not likely to repeat his actions either to Ms. Wall or to any other female employee. Ms. Wall asked for a permanent removal of Mr. Embro from the floor on which she was working as well as a provision in the written agreement that Mr. Embro would not at some time in the future become her supervisor. The University argues that the agreement both physically separated Ms. Wall and Mr. Embro; provided that they should not communicate with each other unless a third party was present; provided that Mr. Kim Martin was to undertake the 1988/89 performance evaluation of Ms. Wall; and that it was understood by Ms. Wall and Ms. Williams that Mr. Martin was Ms. Wall's de facto supervisor.

168Ms. Wall indicated clearly that she was not interested in mediation or having any contact at all with Mr. Embro. Mediation was recommended but was only to be held upon agreement by Ms. Wall and Mr. Embro. (This was explained by the Dean to Ms. Wall prior to the agreement being executed.) The University argues that it was made clear to Mr. Embro that his conduct was untenable and that his working arrangement was significantly changed for an indefinite period of time. He was removed from the area in which his department was situated and distressed by virtue of his week's removal from the University for which he also lost a week from his holidays. As well, University counsel argues that the agreement was stronger than a disciplinary letter which has only a two-year life as compared to the permanent impact of the agreement that was sent to five areas within the senior administration of the University.

169As I indicated during the hearing, I would have preferred the University to have removed Mr. Embro from the area in which Ms. Wall was working and from her supervision more expeditiously and more definitively. However, I find that the agreement, as well as the clear implications of the evidence as a whole, indicate that the University was not prepared to subject Ms. Wall to either regular contact or supervision by Mr. Embro without either consulting her or taking her concerns into consideration. I further find that this was reasonable behaviour on the part of the University. Undoubtedly, Ms. Wall would be looking for reassurance and was emotionally distressed by these incidents. Nonetheless, after she returned to the University, the only direct contact that she had with Mr. Embro was by sheer coincidence when they both happened to be purchasing coffee at the same time in early May.

170I do not agree with the complainant that the University acted unreasonably by not accepting any of Ms. Wall's demands made in July 1989 after she had contacted the Human Rights Commission, sold her home and her husband had resigned his position with the University. I find that the University had at this time separated Ms. Wall from Mr. Embro and taken disciplinary action against him. Although the University did not indicate that the situation would remain permanent, it acted in a fashion that clearly indicated that the work environment would not be changed without input from Ms. Wall. I also find that the University complied with the sixth aspect of the "reasonableness" test by communicating its actions and decisions regularly to Ms. Wall. I therefore conclude that Ms. Wall's claim for loss of income against the University must fail because of my conclusion that the University acted in both a reasonable and compassionate fashion in dealing with this complaint once it was brought to its attention.

171Although I am sympathetic with Ms. Wall's emotional turmoil during the weeks leading up to her departure from the University, I cannot conclude that the University's response to Mr. Embro's behaviour was of such a nature as to be deemed unreasonable so as to hold the University responsible for Ms. Wall's departure from her employment at the University of Waterloo. Ms. Wall was under considerable stress and decided that she was unprepared to accept sick leave or request a transfer to another area of the University. Rather she and her husband determined to sell their home, resign from the University and request compensation.

172In light of my findings with respect to harassment and corporate responsibility, I do not find it necessary to consider Commission counsel's claim with respect to sexual discrimination in great detail. I agree that harassment is a form of discrimination, contrary to s. 5 of the Code (Janzen v. Platy Enterprises Limited, supra). It has been argued that harassment is somehow qualitatively different from discrimination, with the result that individual harassing conduct of employees or supervisors within the workplace should not be regarded as action within the scope of employment. It would follow from this approach that an employer is rightly held responsible for discriminatory actions falling within s. 5 of the Code, but not harassment contrary to s. 7 and s. 10(1). Again, this argument is contradicted by two decisions of the Supreme Court: Janzen, which held that harassment does not fall outside the prohibition of discrimination, but is rather one pernicious species of discrimination; and Robichaud, supra, in which the Supreme Court specifically found the Department of National Defence liable for sexual harassment by its personnel. (See Henwood v. Gerry Van Wart Sales Inc., February 9, 1995, unreported (Ont. Bd.Inq.) [now reported 1995 CanLII 18155 (ON HRT), 24 C.H.R.R. D/244] where Raj Anand discusses these issues in some detail.) My factual findings and conclusions concerning corporate liability lead to an award of damages under the harassment and non-discrimination provisions of the Code.

DAMAGES

173The complainant is seeking compensation for mental anguish, injury to her dignity and self respect and for the infringement of her rights under the Code. Ms. Wall also asked for compensation for loss of wages for six months from the University and that the University be held jointly and severally liable for damages ordered against Gary Embro. As well, the complainant has asked for an additional 15 percent of the compensation for loss of wages for lost employment benefits, together with interest on the total award. As discussed earlier, I dismiss the claim for compensation for loss of wages against the University, including the claim for lost employment benefits and I hold the University jointly and severally liable for any damages ordered against Gary Embro.

174Section 41 confers power on a board of inquiry to order compensation:

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 this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

175Section 41(1)(b) which has been discussed in a number of recent decisions clearly indicates that a board of inquiry may make two distinct awards under s. 41(1)(b). See York Condominium Corporation No. 216 v. Dudnik(1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 [1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406] (Ont. Div.Ct.) and Lampman v. Photoflair Ltd.(1992), 1992 CanLII 14284 (ON HRT), 18 C.H.R.R. D/196 (Ont. Bd.Inq.). The first is an award of damages because the complainant "had suffered the loss of the right to a freedom." Cameron v. Nel-Gor Castle Nursing Home, supra, articulated that this type of damage is (D/2198 [para. 18539]):

An inherent, but separate, component of the general damage award should reflect the loss of the human right of equality of opportunity of employment. This is based on the recognition that, independent of the actual monetary or personal losses suffered by the complainant whose human rights are infringed, the very human right which has been contravened itself has intrinsic value. The loss of this right is itself an independent injury which a complainant suffers.

The second is an award for mental distress and anguish that can only be awarded under the concluding words of s. 41(1)(b) when it has been determined that the infringement has been engaged in wilfully or recklessly. In the absence of wilful or reckless conduct, general damages for stress cannot be awarded. In Lampman, the Board held that in determining damages in a sexual harassment case, it is sufficient to find that the respondent intentionally engaged in conduct that constituted a breach of the Code and that the respondent does not need to be aware of the fact that his conduct constitutes a breach in order for it to be "wiful" or "reckless." I therefore find that it is appropriate to award damages under both branches of. s. 41(1)(b).

176It is helpful to briefly consider the various factors considered by boards of inquiry in assessing damages in recent sexual harassment cases. [In] Cuff v. Gypsy Restaurant, supra, Professor A. Bayefsky summarized some of the factors that were considered by the Board in Torres v. Royalty Kitchenware Ltd.(1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 [at D/873, para. 7758] (Ont. Bd.Inq.):

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

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

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

(iv) The frequency of the harassment;

(v) The age of the victim;

(vi) The vulnerability of the victim; and

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

In Cuff, supra, the harassment was very physical, frequent and aggressive. The complainant was subjected to rude remarks, personal questions, touching and feeling and requests for sexual favours. The complainant was found to be in a vulnerable position. However, it was also found that there was no lasting impression on the victim. Compensation for damages for mental anguish was fixed at $2,000.

177In Hall v. Sonap Canada(1989), 1989 CanLII 9071 (ON HRT), 10 C.H.R.R. D/6126 (Ont. Bd.Inq.), the complainant was granted $1,500 in compensation for humiliation and suffering and interest on the award. In this case, in order to come up with a justifiable amount it was decided that one must keep in mind the whole range of offences that might be covered by this section of the Code. When $10,000 represents the upper limit the law allows for mental anguish, the actions in Hall were considered to fall at the lower end of the scale. The respondent made the complainant constantly feel uncomfortable by touching her and commenting on her looks and private life and on one occasion he kissed her. While no evidence was given as to permanent injury, the Board found that since this was her first work experience some damage would have been sustained. The Board of Inquiry, Rabbi Gunther Plaut, awarded $1,875 in damages and interest totalling $2,493.75.

178In Slobodian v. Adam's Warehouse Burlington Ltd., May 2, 1994, unreported (Ont. Bd.Inq.) [C.H.R.R. NP/94-68], several sexual comments were made which were graphic and the respondent became physically aggressive. The respondent put his hand on the complainant's leg, grabbed her and tried to kiss her. An order was made by Ruth Hartman, of $2,500 in general damages and $6,000 in special damages plus interest.

179In Donaldson v. 463963 Ontario Limited, January 14, 1994 (Ont. Bd.Inq.) [reported 1994 CanLII 18429 (ON HRT), 26 C.H.R.R. D/335], an award of $5,000 was ordered for mental anguish. Here the respondent proposed to the complainant several times in spite of her consistent refusals, showed up at her apartment, parked outside her house, brushed up against her, lied to her about a Christmas bonus, continuously called her and sent her flowers. The complainant quit her job and saw a psychiatrist for treatment of anxiety, weight loss, abdominal pain and sleep loss. It was held that all the elements listed in Torres, supra, were present.

180In considering the factors set out in Torres, supra, for awarding damages in a sexual harassment inquiry, I find that numbers six and seven are the most relevant to this inquiry: the vulnerability of the victim and the psychological impact of the harassment. I must recognize that Ms. Wall was neither at the beginning of her career nor was she inexperienced with regard to the administration of the University. She had complained about Mr. Embro in the early eighties shortly after she came to the University. She testified that after that complaint Mr. Embro's behaviour did not offend her. In light of this experience as well as continued experience at the University, she could have complained after the first incident in 1987. In summation, I find the infringement in this case to be towards the lower end of the scale. While there is reliable evidence that there were psychological and physical effects, the harassment was not frequent nor aggressive in nature. I assess damages under both branches of s. 41 in the amount of $3,500.

181The complainant's total compensation for the loss arising from the infringement and mental anguish is therefore $3,500. She is entitled to prejudgment interest on this sum from the date of the complaint, which is February 16, 1990, to the date of this decision. (See Cameron, supra, at D/2201, paras. 18564—65; Lampman, supra.) Applying the rate of 12.4 percent under s. 127 of the Courts of Justice Act, I calculate the interest at 12.4 percent à— $3,500 à— 61/12 = $2,206.17.

182I therefore order the respondents to pay the complainant Beryl Wall the total sum of $5,706.17.