HUMAN RIGHTS TRIBUNAL OF ONTARIO
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by Ligia Arias dated December 4, 2000 alleging discrimination in employment on the basis of sex, sexual harassment, sexual solicitation and reprisal.
B E T W E E N :
Ontario Human Rights Commission
Commission
- and -
Ligia Arias
Complainant
- and -
Sanjay Desai and 1329732 Ontario Ltd. o/a Comfort Suites Hotel
Respondents
DECISION
Adjudicator: Mary Ross Hendriks
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946
TTY: (416) 314-2379 / 1-800-424-1168
APPEARANCES
Ontario Human Rights Commission ) Amyn Hadibhai, Counsel
Ligia Arias, Complainant ) on her own behalf
1329732 Ontario Ltd. o/a Comfort Suites Hotel, )
Corporate Respondent ) Sanjay Desai, on behalf of
) the Corporate Respondent
Sanjay Desai, Personal Respondent )
) Anthony Barile, Counsel )
1. INTRODUCTION:
(1) The Hearing on the Merits
The hearing on the merits of this case was held in Windsor on October 29 and 30, 2002.
After hearing oral argument from both counsel for the Ontario Human Rights Commission (the “Commission”) and counsel for the Personal Respondent, the Tribunal (then called the Board of Inquiry) provided all parties with the opportunity of filing any additional final written submissions and authorities. Counsel for the Commission and for the Personal Respondent filed additional authorities.
(2) A Brief Summary of the Facts
The Complainant, Ms Ligia Arias, was (then) an 18-year old "co-op" student enrolled in the Hotel and Restaurant Management Program at St. Clair College in Windsor when she obtained employment at the Comfort Suites Hotel (the “Corporate Respondent”) as a front desk agent. Her employment there commenced on May 29, 2000 and ended on August 16, 2000, when she was terminated by the Personal Respondent, Sanjay Desai.
She testified that she had deliberately sought a position at a local Windsor hotel, since part of her co-op program included hotel management, and so it fit with her long-term career plans. It was her first position in the hospitality industry after she had completed the first year of her college program.
Mr. Desai and Mr. Jack Patel were two of several related owners of the hotel. After receiving her résumé and list of work-related references, which were filed as exhibits during this hearing, Mr. Desai and Mr. Patel interviewed Ms Arias and offered her the position. She accepted. Ms Arias alleges that the inappropriate sexualized nature of Mr. Desai's behaviour toward her began at the interview, and escalated during his frequent visits to the hotel throughout her period of employment. Counsel for the Commission filed several exhibits that were made contemporaneously by the Commission during Ms Arias’ initial complaints. Ms Arias also made an allegation of sexual harassment against Mr. Patel. He was not named as a Personal Respondent.
The person responsible for the daily management of staff during the time in question was the General Manager of the hotel, Ms Patricia Bornais. Mr. Desai had a full-time position with Ford, and also owned a second hotel, and so the day-to-day management of front desk staff was the purview of Ms Bornais. Ms Bornais testified that she had been asked by Mr. Desai to find a pretext to fire Ms Arias, but since she believed that Ms Arias was a good worker, and she was aware of Ms Arias' allegations of sexual harassment and of similar allegations by other members of staff, she refused and resigned. Her letter of resignation was a missing piece of evidence, and the contents of it were in dispute during the hearing, as set out in detail below.
A colleague of Ms Arias, Samantha Rau, testified that she was also the subject of sexual harassment herself. Ms Rau testified on behalf of Ms Arias as to the highly sexualized nature of the remarks that Mr. Desai directed to various female staff, and to her contemporaneous recollection of Ms Arias remarks to her about one specific incident with Mr. Desai. After Ms Bornais' resignation, Ms Rau and Ms Arias were terminated shortly thereafter.
Mr. Desai and Comfort Suites Hotel denied all the allegations. They called a number of witnesses who worked at the hotel that summer, who testified that they saw no improper conduct take place. Their evidence is summarized below in detail. The Respondents questioned the recollection of Ms Arias, and noted some discrepancies between the exhibits and her oral evidence. The Respondents allege that Ms Arias had serious job performance issues, and testified that it was for this reason that she was terminated while on what the Respondents’ characterize as “ninety day probation”.
They also questioned the credibility and character of Ms Rau, and the professional competence and true motivation behind the resignation of Ms Bornais. The Respondents also called Mr. Desai's spouse, Ila Desai, as a witness, who is and was at all times a salaried employee of Comfort Suites Hotel. It was during the evidence of Mr. and Mrs. Desai that the issue of reference checks emerged, which is set out in detail below. The Respondents allege that after Ms Bornais’ resignation, they were sufficiently concerned about her poor performance as General Manager that they checked virtually all of the references of their staff who were still on probation, because they were suspicious that she had not done a thorough enough job in screening staff.
2. ISSUES:
The Tribunal examined the following issues:
(1) Was the Complainant’s right to equal treatment with respect to employment without discrimination based on sex infringed, contrary to ss. 5(1) of the Code?
(2) Was the workplace poisoned?
(3) Was the Complainant the subject of sexual solicitation and harassment in the workplace, as per ss. 7(2) of the Code?
(4) Was the Complainant’s right to be free from sexual solicitation from those in a position to confer, grant or deny her a benefit or advancement infringed, contrary to s. 7(3)(a) of the Code?
(5) Was the demand made on the General Manager of the hotel to terminate the Complainant’s employment reprisal for rejecting the sexual solicitations made by a person in a position of authority, contrary to s. 7(3)(b) of the Code?
(6) Was the termination of the Complainant by the Personal Respondent retaliation for rejecting his sexual solicitations, contrary to ss.7(3)(b) of the Code?
(7) Was the termination of the Complainant by the Personal Respondent also reprisal for complaining to the General Manager, contrary to s. 8 of the Code?
3. DECISION :
The Personal Respondent infringed the Complainant’s right to equal treatment with respect to employment without discrimination based on sex. The workplace was indeed poisoned by the sexual solicitation and sexual harassment of the Complainant and other staff by the Personal Respondent. Furthermore, the Complainant’s right to be free from sexual solicitation from a person in a position to confer, grant or deny a benefit or advancement was infringed. The Personal Respondent attempted to commit an act of reprisal when he asked his General Manager to create a pretext to fire her for rejecting his sexual advances. The Tribunal finds this attempted reprisal constitutes a “threat of reprisal” contrary to ss. 7(3)(b) of the Code. These violations are contrary to the wording and the spirit of sections 5 and 7 of the Code.
The Respondents committed an act of reprisal when they actually fired the Complainant for advising her immediate supervisors of the sexual harassment, and for rejecting Mr. Desai’s sexual advances, contrary to section 8 of the Code.
4. LIST OF WITNESSES:
The Tribunal heard evidence from eight witnesses. One witness, Patricia Bornais, was permitted to provide her evidence by conference call, in accordance with the Interim Decision of September 30, 2002, as noted in Appendix “A” – Preliminary Matters.
The witnesses were as follows:
(1) Ligia Arias – the Complainant;
(2) Samantha Rau – former hotel employee, and a witness for the Commission and the Complainant;
(3) Patricia Bornais – former General Manager of the hotel and a witness for the Commission and the Complainant;
(4) Dejan Ninkovic – former night auditor at the hotel, and a witness for the Respondents;
(5) Sanjay Desai – the Personal Respondent;
(6) Ila Desai – spouse of the Personal Respondent and an employee of the hotel;
(7) Rodica Batkai – a Manager at the hotel and a witness for the Respondents; and
(8) Branka Barisic – former part-time employee of the hotel and a witness for the Respondents.
5. EVIDENCE:
The evidence in this case is set out below.
5.1 Commission and Complainant’s Evidence:
(1) Ligia Arias
Ms Arias testified that she resides in Windsor, and is employed as a Catering Sales Coordinator for Executive Class Catering.
Ms Arias said that she had applied to many different hotels throughout Windsor, but that she knew someone who was willing to give her résumé to Jack Patel. Mr. Patel called her and she was interviewed by both Mr. Patel and Mr. Desai. She testified that during the interview, Mr. Patel was a “gentleman” but that Mr. Desai looked at her “breasts instead of my face”. She said that she was “nervous about getting the job”, and “didn’t pay enough attention” to this situation. Ms Arias further testified that she had two job offers at hotels outstanding at the same time, and that she chose Comfort Suites Hotel over the Days Inn, for two reasons. First, she believed she would obtain better work experience in a brand new hotel, and secondly, that there was no bus route from her house to the Days Inn.
Ms Arias testified that she began her employment at the Hotel in late May, 2000, as a front desk agent, on the 3 to 11 p.m. shift. As such, her duties included: checking in guests; checking out guests; answering telephone calls; and providing general assistance to guests. She testified that she reported to Patricia Bornais, who was the General Manager of the hotel.
(a) The Demands for Hugs
Ms Arias testified that Mr. Desai often came to the hotel for about half an hour during her shift. She observed that when he spoke to her, his behaviour toward her was frequently inappropriate. She said that he often looked at her breasts, and frequently asked for hugs. Ms Arias testified that she was “uncomfortable with the whole situation but felt pressured into it”.
She testified that she felt awkward giving him hugs, but that “another girl at the front desk did it, too.” She added that “another girl named Agnes” also gave Mr. Desai hugs at his request. Both women had been trained during the same week, and Ms Arias had seen Mr. Desai hugging Agnes that first week. After the first week of June, 2000, she and Agnes were then on different shifts, so she had no knowledge whether the hugging of Agnes continued.
When asked what Mr. Desai said to indicate that he wanted a hug from her, she replied that he would say in Spanish, “Dama un abrazo”, and she would give him a hug in response. During her cross-examination, when asked how often he asked her for hugs, Ms Arias replied that hugs occurred “almost every time he came in, about eighty percent of the time he came in”. She also testified that he asked for hugs in Spanish about half of the time, and in English about half of the time.
(b) June 25, 2000
On Sunday, June 25, 2000, Ms Arias said that she was working the 3-11 p.m. shift alone at the front desk when Mr. Desai came into the hotel with his neighbour. It was not unusual for her to work this shift by herself. She testified that Mr. Desai asked his neighbour to go to the parking lot and move the truck to the front of the hotel.
Mr. Desai went into Ms Bornais’ office, next to the front desk. The lights were off and the office was dark. He called her into the room. She said that she assumed Mr. Desai was there looking for reports. Ms Arias testified that Mr. Desai called her into the darkened office, where he was at “the edge of the desk with his arms wide open, asking for a hug.” She testified that she gave him the hug, but that when she tried to pull away, “I couldn’t get out of the hug.” She added that, “he started nibbling on my ear” and that she “got frightened and pushed harder”. At that point, she “felt his erection” and she “pushed harder and got away”. She then started to walk back to the front desk, and Mr. Desai asked her why her “breasts were so hard” and said that he “wanted to eat her”. She returned to the front desk and started doing her work, but “he didn’t want to leave me alone.” She deliberately “got busy with the phone calls at the front desk”, but before Mr. Desai left, he offered to come back to the hotel again later. She declined, saying that there was no reason to do so, that they were “not busy”.
Ms Arias testified that Mr. Desai left the hotel and that she telephoned her boyfriend and told him what had happened. While she was on the line with her boyfriend, Mr. Desai called her on another line and asked her for more hugs and repeated his earlier comment about wanting to “eat her”. During cross-examination, Ms Arias was shown Exhibit #8, the incompleted police form, and the indication in it that she had said there that her boyfriend called her immediately after the incident, but in oral testimony at this hearing she said she had called him. She maintained that she called her boyfriend, and that this particular notation had been a mistake.
She testified that she told Mr. Desai that she was busy and ended the telephone call with him. She said that she remained on the telephone with her boyfriend for one to two hours. Ms Arias testified that she kept her boyfriend on the telephone because she was scared Mr. Desai would return. She also stated that she was in shock, but afraid that if she left, she would be fired, because she was working alone at the front desk. After this incident, she testified that Mr. Desai “didn’t stop asking for hugs”, but that she stopped giving them to him.
(c) Incident with Jack Patel
Ms Arias testified that after the incident of June 25, 2000, Mr. Patel also tried to persuade her to go into Ms Bornais’ darkened empty office with him, but that she ignored him and did not go in. This was the only incident with Mr. Patel, and for that reason, she did not file a complaint against him.
During cross-examination, Ms Arias admitted that her belief that Mr. Desai must have spoken with Mr. Patel about the incident on June 25, 2000 was only her own assumption, and that she has no direct knowledge whether they ever discussed it. She was also unclear as to whether or not the incident with Mr. Patel occurred before or after the incident at the front desk, as set out below, nor could she recall how long it was after the incident of June 25th. Mr. Patel did not testify.
(d) Incident at Front Desk
On another occasion, Ms Arias said that she was at the front desk taking a reservation from a customer over the telephone and entering it on the computer when Mr. Desai “came in, walked by me, and grabbed my butt” with his hand. She said that she was standing up at the time of this incident. During her cross-examination, when asked, Ms Arias used both the terms “grabbing” and “squeezing” to describe the sensation to her buttocks. She testified that she was not certain if Mr. Desai used his left hand or his right hand to make contact with her buttocks.
(e) Incident in Parking Lot
Ms Arias testified that on one occasion, she was required to work her shift in the parking lot of the hotel. Mr. Desai was there working with her. Overhead, they saw an airplane with a banner containing a marriage proposal. She testified that Mr. Desai “looked at the sign and said ‘will you marry me?’” She did not reply.
Ms Arias admitted that she had difficulty recalling when this incident occurred, other than to say it was after the others. She testified that she told her family about this parking lot incident the next day.
(f) Discussion between Ms Arias and Ms Bornais
Ms Arias testified that she also told Ms Bornais everything about the parking lot incident and “everything that had happened” during one conversation. However in cross-examination, she admitted that she was not sure whether she told Ms Bornais about all the incidents or just the parking lot incident, during that conversation.
Ms Arias testified that Ms Bornais told her, during this discussion, that “she was glad she came to her and told her this because Desai had asked her to find a way to fire her and she didn’t understand why and now she understood the reason why.” Ms Arias also testified that Ms Bornais advised her to go to the police and to her family for support on these issues.
(g) Visit to the Windsor Police
Ms Arias testified that she went to the Windsor Police station, at its downtown headquarters location. She spoke to a police officer. He took down some notes and told her he could not help her, because a specific department handled the sexual harassment cases. He gave her some forms to take home and fill out, and the telephone number of the person to call if she wanted to further the complaint.
Ms Arias testified that she later called that number, and wanted to make an appointment, but there was only one person handling sexual harassment cases in Windsor, and she was very busy. Ms Arias was not prepared to endure a long wait to have an appointment with her. When asked, she could not recall this police officer’s name. During cross-examination, Ms Arias stated that she only called the officer once, and was not prepared to wait a week to meet with her. Instead of pursuing her complaint with the Windsor Police, she made the decision to contact the Commission.
(h) Initial Contact with the Commission
Ms Arias completed the Commission’s Intake Questionnaire form. Her signed Intake Questionnaire was dated July 31, 2000. It was made Exhibit #1.
When asked in cross-examination about her failure to record the requests for hugs she said that she must have forgotten to advise the intake officer of them. She indicated that “June 25th was the main thing”, and that the touching on June 25th was worse for her than the hugging episodes.
Mr. Barile also asked her to explain the discrepancy between the Intake Questionnaire’s reference to “rubbed her butt” versus the Intake Profile’s reference to “grabbed her butt”. She testified that Mr. Desai “grabbed” rather than “rubbed” her “butt”.
Respondent’s counsel challenged Ms Arias’ testimony about the chronology of events, noting that in her Intake Profile, she described the buttocks incident as the last, but that in her testimony, she said that the parking lot incident was last. Ms Arias responded that she thought the parking lot incident was the last.
(i) Termination of Complainant’s Employment
Ms Arias testified that Mr. Desai fired her not Ms Bornais. Mr. Desai “called me at my house and said briefly that my services were no longer needed at Comfort Suites”. He did not give any reasons. A couple of days prior to her termination, Ms Arias went into work and was told that she was not on the schedule for that day. She took this as a “hint that things were going to change.” At no time was she given any performance evaluations or formal reviews, nor was she given any feedback on her performance by any hotel staff.
Ms Arias’ letter of termination from Comfort Suites, dated August 16, 2000, was entered as Exhibit #3. It states, “Effective today, August 16th, 2000, you have been terminated from Comfort Suites. Good luck in your future employment”, and was signed by Sanjay Desai, President. She picked up this letter and the Record of Employment (“ROE”) on August 17, 2000, the day after the telephone call terminating her.
Ms Arias’ ROE was entered as Exhibit #4. It indicates that she began her employment on May 29, 2000 and her last day was August 16, 2000. The reason given on the ROE was “dismissal”.
(j) The Complaint
The formal Complaint was identified by Ms Arias in chief and admitted on consent as Exhibit #2. She signed and dated it December 4, 2000.
In her evidence in chief, Ms Arias could not recall exactly when she went to Ms Bornais to complain. She testified that it was after June 25, 2000, and was more likely the beginning of July, 2000. She said that it was a “mistake, I didn’t catch” to state that she went to see Ms Bornais “in or around the middle of June 2000.”
(2) Evidence of Samantha Rau
Samantha Rau was called as a witness for the Complainant. According to her ROE (Exhibit #6), she worked at the hotel from May 29, 2000 to August 19, 2000, at which time she was terminated.
She worked at the front desk and her duties were similar to those of the Complainant. She reported to Ms Bornais, and identified Mr. Desai as the owner of the hotel.
Ms Rau testified that Ms Bornais had hired her, and that they had worked together before at the Howard Johnson Hotel in Windsor. She had worked at Howard Johnson’s from May 1993 until January 2000. She admitted that she had been accused of theft from Howard Johnson’s. She testified that she denied the substance of that allegation, and that she had filed a complaint concerning that allegation with the Ministry of Labour. Ms Rau testified that because her ROE stated her departure from Howard Johnson’s had been a “downsizing”, they were not ordered to reinstate her.
Commission counsel asked how Mr. Desai treated her, she replied that “he didn’t treat me badly but he had sexual comments all the time.” When asked what those comments were, she testified that Mr. Desai had said the following things directly to her: “shorter skirts are easier access”; “wear your glasses, it makes me hard”; and suggested to her and other women that he should be having “a party in the jaccuzzi with the girls”.
Commission counsel asked her how frequent these remarks were, and she responded that, “little sexual comments happened more often than enough.” When she was asked by Commission counsel where would he say these things to her, she testified that Mr. Desai said “little things when working or in the back.” She estimated that Mr. Desai’s sexualized comments occurred “probably one or two each time we saw him.” When she was asked how she reacted, she said she “just brushed it off, I’m not the type of person to take it really Personally, but after a while it got annoying.” She also responded to it by “joking back and calling him a pig or a dog.”
In addition to the sexual comments that Mr. Desai made directly to her, Ms Rau witnessed him make sexual comments to women generally, but did not witness him make any sexual comments directly to Ms Arias. However, Ms Rau testified that she normally worked the day shift, and Ms Arias worked the afternoon shift, and so their shifts only overlapped once or twice per week, and typically she only saw her in passing. Ms Rau testified that Mr. Desai’s comment about the Jacuzzi was directed to both herself and to Shelly Garrick, another employee at the hotel.
Ms Rau described the interaction she observed between Mr. Desai and Ms Arias, by saying, “Ms Arias is well-endowed and he was pretty much talking to her breasts.” She added that, “he always had the look” and that she had experienced “the look” herself.
She testified that, “I don’t take it Personally but when they know you’re married, they should keep it to a limit.” During cross-examination, she testified that, “ he did not treat me badly but had many sexual comments”, and that while she would say, “he did a good job for the hotel and was a nice man, he just had way too many comments.” She further testified that Mr. Desai’s sexual comments “started when he got comfortable, a few weeks after we started, at the end of June.” During her cross-examination, Ms Rau explained her relationship with Mr. Desai by saying that “I would have no difficulty working with Mr. Desai again as a person, outside of his sexual comments.”
During Mr. Desai’s cross-examination of Ms Rau, he stated, “I did make comments”, and asked Ms Rau if “they were joking or not.” Ms Rau responded that some were made jokingly, and that she had chosen to take some as jokes and to reply in kind. When Mr. Desai asked Ms Rau if she felt that he had been harassing her, she replied, “I made it easier for myself by saying something back to you.” In fact, during Mr. Desai’s cross-examination, Ms Rau said, “I agree, I never told you to stop making comments. I’ve been in this situation before, and I made it like a joke, so it wouldn’t bother me.”
Ms Rau testified that Ms Arias had, “toward the end”, told her that Mr. Desai had touched her and that she was very scared and did not know what to do. Ms Rau described this conversation with Ms Arias again by saying that, “she told me she was touched and pushed up against and very scared.” Ms Arias did not tell her “where he touched her or how.” Ms Rau testified that, “I didn’t tell her to go to the police but did tell her she had to do what she felt was right and had to go forward if she felt she was harassed.”
Ms Rau gave evidence that she was terminated after Ms Bornais had already left. Her termination left her “very surprised”, because she had never been given notice of issues with her performance nor any performance reviews. She thought she had “done a good job” and “one day – gone”. She said that she had not been fighting with Mr. Desai, and so she really did not understand what had happened.
Ms Rau testified that her termination occurred after she had worked her full shift on a Saturday. She stated that she was walking out to her vehicle to drive home when Mr Desai handed her an envelope and said she was no longer needed at the hotel. When she asked him why, she testified that he replied, “it’s a legal matter now”. She asked him what that meant, and he did not answer.
Ms Rau’s evidence was that she received two telephone calls from Mrs. Desai “a few months ago”, which occurred “just after Mr. Hadibhai contacted me.” Ms Rau testified that during Mrs. Desai’s first telephone conversation with her, Mrs. Desai said that she had just recently found out what was going on, and then began trying to intimidate her. According to Ms Rau, Mrs. Desai said, “I’ll do anything I can to keep my family together” and was “screaming at the top of her lungs”. Ms Rau testified that Mrs. Desai also said that, “my husband could go to jail”, and yelled at her that, “Sanjay was a good man and would never do something like that to anybody”.
Ms Rau testified that about a month and a half after the first call from Mrs. Desai, she received a second call from her. During this second conversation, Ms Rau said that Mrs. Desai was not yelling, but was very upset. Ms Rau testified that, “she offered to do what she could to stop us from testifying”, and that Mrs. Desai said that she would “do anything to help her husband.” Ms Rau also stated that she had discussed these conversations with Ms Garrick, and that Ms Garrick had also been offered help in exchange for not testifying, in the form of good references. Ms Rau testified that she and Ms Garrick are no longer friends, and she does not know if Ms Garrick received any references or not from Mrs. Desai. Ms Garrick was not called as a witness during the hearing. After this second call, Ms Rau informed Commission counsel of these telephone conversations.
(3) Patricia Bornais
Patricia Bornais was called as a witness by Commission counsel, and in accordance with the Tribunal’s Interim Decision, she was allowed to testify by conference call. She stated that she had been hired as the General Manager for the Comfort Suites Hotel. Her duties were to oversee the daily operations of the hotel, produce financial statements, ensure that financial objectives were met, and train staff. She testified that she had “a great involvement with staff for the first two weeks” while they were in training.
She said that she reported to Mr. Desai and “another one of the owners named Jack”, and in turn, that she supervised Ms Rau. Ms Bornais testified that Ms Arias was supervised by both Ms Rau and herself. She testified that he was “there day in and day out”, and that she interacted with him between four and six times per day. Once the daily operations at the hotel were running smoothly, Mr. Desai took a promotion at a full-time job at Ford in Michigan. She testified that once that occurred, he would still stop in at the hotel in the morning on his way to Ford and again in the evening on his way back.
(a) Her Management of Ms Arias and Ms Rau
Ms Arias was hired the day before Ms Bornais started work. Ms Bornais had asked Ms Rau to work at this hotel on the front desk as a co-ordinator. Ms Bornais noted that Ms Rau had three or four years of experience. She rated Ms Rau as an “excellent employee”, and rated Ms Arias as a “satisfactory employee”. Ms Bornais’ reasons for giving Ms Arias a satisfactory rating were that she was new to the industry, and while she had the “theoretical part” from taking the St. Clair College course, she did not have “the practical part down”. Given time, however, she felt that Ms Arias “would be a great asset to any hotel.”
Ms Bornais testified that she first became aware of the allegations of sexual harassment by Mr. Desai against Ms Arias from Ms Rau. Ms Rau made it clear to Ms Bornais that neither she nor Ms Arias wanted anyone to know, because they were both afraid for their jobs. Moreover, Ms Rau made allegations of sexual solicitation happening to her, as well. Thus, Ms Bornais said, “I waited for Ligia to approach me on it and that’s when I discussed it with her.” Ms Bornais did not directly observe any harassment. During her cross-examination, Ms Bornais described her conversation with Ms Arias. She recalled Ms Arias recounted the events of June 25, 2000, and added that it “wasn’t the first time.” Prior to the incident on June 25th, Ms Arias told Ms Bornais that Mr. Desai had made “verbal comments” but had not touched her.
(b) Three Different Female Staff Workers Complained of Sexual Solicitation
Ms Bornais testified that Ms Rau, Ms Arias and “Agi”, who is also known as “Agnes”, had each complained to her of sexual solicitation by Mr. Desai. Ms Bornais testified that Agi had told her that she had been “very close” to Mr. Desai, although she did not articulate what that meant. Ms Bornais said Ms Rau “knew about Agi.” Ms Bornais testified that, “Mrs. Desai said that Agi was going through a stage in life, and was very revengeful”.
(c) The Alleged Demand that Ms Bornais Fire Ms Arias
Ms Bornais testified that she had no plans to fire Ms Arias. Mr. Desai had asked her “to find a way to dismiss Ligia.” When she asked Mr. Desai why “he said he didn’t feel she was doing her job.” Ms Bornais told Mr. Desai that she had no justification to do it. He did not respond. In Ms Bornais’ view, Ms Arias, “was a fine employee, no just reason, no cause for termination. If she doesn’t have the tools to do the job, the General Manager should give her the tools to do it. To find reasons for termination – there was no just cause.” Ms Bornais said by then she had spoken with both Ms Rau and Ms Arias, and she “knew the innuendo of what had transpired and then I was asked to terminate her for no just cause”.
Ms Bornais testified that after her conversation with Ms Arias about the harassment, she documented Ms Arias’ complaint, wrote up her own letter of resignation, and asked Mr. Desai to meet with her. She confronted Mr. Desai with the allegations, and asked him if it actually happened. He responded, “Do you think I’d do such a thing?” She replied that she “didn’t know him well enough to judge him.” She demanded that he tell her if the allegations were true or untrue. When he failed to do so, she handed him her letter of resignation.
(d) Her Resignation and Conversation with Doug Gray
When Ms Bornais was asked in chief how she felt about her resignation, she stated that, “there was no reason for me to be leaving, I hated to leave, but it was not justifiable to be put in this position.” She testified that Mr. Desai did ask her to stay a couple of times after that, but she refused. She stated that “otherwise, he treated me very fairly”. Ms Bornais also testified in chief that she advised the hotel franchise president, Mr. Gray, of the “situation and what I was about to do”, because she did not “want anything to slander my career.” She said that Mr. Gray replied, “I understand.”
During her cross-examination, it was suggested that she did not resign because of the allegations, but because she had found another position at a different hotel in Niagara Falls. Ms Bornais testified that she was “unemployed for a couple of weeks before I found that job” but did not recall when she first approached that other hotel about possible opportunities.
5.2 Witnesses for the Respondents:
(1) Dejan Ninkovic
Mr. Ninkovic is a resident of Windsor enrolled full-time in his second year of the Hospitality and Tourism Management program at Ryerson University. He testified that he worked at the Comfort Suites Hotel from July 5, 2000 to August 18, 2001. When he was first hired, he was a full-time auditor on the night shift. His duties as Night Auditor included sorting through paperwork from the previous day, balancing receipts and making deposits. In cross-examination, he said that “in the beginning, I was on the all night audit shifts, which were from 11 p.m. to 7 a.m.” In October 2000, the hotel offered him the position of Front Desk Manager, which he occupied until he left the hotel to attend Ryerson.
Mr. Ninkovic testified that he was hired by Ms Bornais. He had worked with her previously at the Ramada Airport Hotel, and she called him and offered him the job. He only met Mr. Desai after he had worked at the hotel for about one week.
While he did not deal with Mr. Desai much as the Night Auditor, he did deal with him at least twice per week, if not daily, when acting as the Front Desk Manager. He described Mr. Desai as being “very business-like.” He never witnessed Mr. Desai use profane language, make sexual comments, or engage in improper touching. During the summer of 2000, the hotel had ten employees four of whom worked at the front desk: “Samantha, Ligia, Patricia and Sherry.”
Mr. Ninkovic testified that Ms Bornais only stayed at the hotel for about a month to a month and a half before she went to Niagara Falls to work at another hotel. He said that he knew she was leaving, and that she had complained about the difficulties with the manual bookkeeping system. He described Ms Bornais as appearing excited about her new opportunity, and testified that she wished them all the best when she left.
Mr. Ninkovic said that Ms Rau was the first person to train him, and that she had a great deal of experience in the hotel industry. He described her as very “professional” except that “she was flirty with guests” and he did not think she dressed professionally. He spoke to Ms Rau on shift exchanges, typically for about half an hour, but as Ms Rau’s shift changed often there was no pattern to it.
When he was asked if he had seen Ms Arias’ work, he said that he reviewed her transactions, and that there were “a few little problems that could have happened to anyone”, including a mistake that she made in which she accepted a credit card belonging to the guest’s parent and she added a notation about it in the front desk’s log book. During cross-examination, he stated that he left her a note in the log book that this was “not the proper way to do things”, since he “would not see her for a few days.” Another error she made involved “a couple of unsigned authorization forms”. During cross-examination, he testified that he was on the regular night shift and “worked alone” from 11 p.m. to 7 a.m.
He testified that he had been unaware of the allegations of sexual harassment until after Ms Bornais had left. Although he is unsure of the date, he believes that he did not hear of those allegations until the end of September or beginning of October, 2000, from another employee.
(2) Sanjay Desai
(a) His Role as Hotel Owner
Mr. Desai testified that he came to Canada in 1987 after having been sponsored by his wife. They have two young children. He received his Masters degree in Mechanical Engineering from the University of Windsor in 1993. He has been a full-time employee of Ford since 1994, and is a Maintenance Planning Specialist. He has 40 people reporting directly to him, including 6 supervisors, and is responsible for 120 employees overall.
In 1995, he purchased his first hotel, the Innkeeper Hotel, in Windsor. He was the sole owner, and that he had lived there and had operated it, while maintaining his employment at Ford. In June, 2001, he leased the hotel to a third party. In December, 1999, he became one of nine owners of the Comfort Suites Hotel, being: Balu Patel, Thakor Patel, Dhansukh Patel, Suresh Patel, Sanjeer Patel, Himanshu Desai, and Harish Desai. Mr. Desai said that he and Jack Patel each have about a thirteen percent interest in the hotel’s ownership, and the other partners each have an eleven percent interest. It is a 45-room hotel, and employs 15 full-time workers and 8 part-time workers. He said that he and Jack Patel run the hotel on behalf of the other partners.
He testified that he hired Ms Bornais as the first General Manager of Comfort Suites Hotel. He clearly recalled that as of May 29, 2000, the hotel was not yet finished. Carpets and furniture were still being installed, and he took six days of vacation and four weekend days to work on it. Mr. Desai testified that he was at the hotel everyday for the first ten days of June, 2000, working 10-12 hours at a time, putting things in order. After that initial period, he went back to the "steady midnight shift at Ford.” He would visit the hotel to check on it when he was not working his shift at Ford, often at 3 a.m. or 5 a.m. on his break, or "around noon", when he would go into the hotel for 30 to 60 minutes two or three times per week on his way into his job at Ford. He testified that Ford is only an 8 minute drive away from the hotel at night. Mr. Desai said that when he visited the hotel at night, he met with the night auditor, Naz Ramadau, and when he visited it in the daytime, he would meet with Patricia Bornais. Once the hotel was up and running, he testified he only went in three times per month, and was with his wife when he went, "99 to 100% of the time."
(b) His Interview of Ms Arias
Mr. Desai testified that when Ms Arias was initially interviewed, she was advised that she would have to train for both of the front desk and cleaning staff positions. Areas of work would be assigned to them. He said Ms Bornais assigned Ms Arias to work at the front desk. Mr. Desai knew of Ms Arias’ hotel management course, but said that “she took the job even on those conditions.” He said that Ms Arias had brought her cover letter and résumé with her on her interview, which were in her personnel file, that the Respondents entered as Exhibit #11. The Tribunal notes that her résumé found in Exhibit #11 consisted of two pages, and the second page listed two references. These references were: "Terri Coones, Tickers Manager" and Chad Day, Taco Bell Manager", and included their respective telephone numbers.
(c) Mr. Desai’s Interaction with and Assessment of Ms Arias’ Work Performance
When asked how frequently he saw Ms Arias, Mr. Desai testified that he saw her on the front desk frequently for the first two-week training period, along with all the other new staff. After her training ended, he saw her about two or three times per month.
He testified that Ms Arias was paid $8 per hour, and that she worked a 40-hour week “some weeks”, and 30-hour weeks at other times. He said that on average, she worked a 40-hour week.
Mr. Desai said that he was never alone with Ms Arias in the office, denied that he hugged her or any other female employees, or "touched, rubbed or grabbed" her buttocks. He denied he made any sexual comments to her or to anyone else. He stated that he never uses "swear words or other foul language," and warns his staff "not to use bad words at work or they could be written up." During cross-examination, he said that he “promotes an environment of zero tolerance” for “foul language”, and writes up Ford employees for such behaviour. However, at Comfort Suites, Mr. Desai said that he has not written anyone up, but “if it comes to that extent, they should be given a memo.”
Mr. Desai testified that Ms Arias’ job performance as a front desk clerk was “poor”, and that he had discussed her performance with Ms Bornais, noting the mistakes she had made in the front desk log book. He said that her errors included: incorrect reservations; cancellations; Mastercard charges put on AMEX slips; and having given someone a free room because the customer had told her that Ms Bornais had authorized it. He said that Ms Arias also mistakenly gave a room to someone who was using their parent’s credit card. In July, 2000, he and his wife found Ms Arias sleeping on the job. When asked if he documented this incident, he responded that he did not write it up, but did speak to Ms Bornais about it the next day. He then added that Ms Bornais “lacked control over the manpower.”
(d) His Delegation of Responsibility to Ms Bornais
Mr. Desai said that since “the whole operation was overviewed by Patricia Bornais, I felt the proper communication channels were to her, and she’d take steps to memo it.” He acknowledged that no performance reviews were done, “as far as I know…we were struggling in the beginning.” However, he testified that Ms Bornais “mentioned in the communication log to all employees that performance evaluations were coming.” Ms Bornais was responsible for conducting performance evaluations, but no formal evaluations took place. During his cross-examination, he said that “on several occasions” Ms Bornais “was reminded about mistakes made by staff and the situation got out of control.” He added that Ms Bornais had “hired a number of people who’d all worked with her before at two other hotels.”
(e) His Denial That Ms Bornais Was Asked to Create a Pretext to Fire Ms Arias
Mr. Desai denied ever asking Ms Bornais to find a reason to fire Ms Arias. His evidence is that he had expressed his feelings to Ms Bornais regarding Ms Arias’ poor performance. He said that Ms Arias’ ninety-day probation was coming to an end, so he told Ms Bornais “for certain employees not to continue their employment. I did not need any reason to fire those employees.” He stated that he had obtained some advice regarding statutory probation from a “human resources board” website, and from his sister-in-law, who used to work in human resources. He said that he always knew that probation lasted ninety days, but wanted advice from his sister-in-law as to whether or not he had to give notice within that period. He agreed that neither Ms Arias nor Ms Rau were given notice of their terminations during their probationary periods. Mr. Desai testified that he could not recall if he terminated Ms Arias by telephoning her at home.
During cross-examination, Mr. Desai identified Exhibit #11 as Ms Arias’ personnel file, and stated that it was complete. He testified that there were no memoranda nor written record of any other kind by any of the staff regarding Ms Arias’ performance in her file. During his re-examination by Mr. Barile, he elaborated that he had not issued any memoranda to any of his employees in 2 1/2 years, so there were no write-ups in anyone's personnel files. He has recently changed this practice, and now "documents things." Mr. Desai said that at the time, "serious comments" were put in the log book, and they were typically "collective comments" directed to all his employees. He then added that he would normally "call Rody or Dan" and discuss the issue.
(f) His Conversation with Doug Gray
He testified that Ms Bornais left his hotel to go to a job at the Days Inn in Niagara Falls, and that she left because she had a better job. However, he said it was the “other employees who told me she went to Niagara Falls”, which was “confirmed” to him by Doug Gray when “he came for his annual inspection.” During cross-examination when asked if that was the same Doug Gray that Ms Bornais had mentioned in testimony, he replied, “yes, that’s what she says.”
(g) Ms Bornais' Resignation
Mr. Desai testified that Ms Bornais handed him her letter of resignation, but that she did not give him a reason. He said that Ms Bornais did not leave on bad terms, and left a positive message in the log book to the employees. The evidence about a positive message in the log book was supported by Mr. Ninkovic’s testimony as well.
During cross-examination, Mr. Desai said that Ms Bornais’ letter of resignation was only a one and a half to two line statement, stating that “she’s resigning as of so and so date, she quit…no specific other things in that letter.” However, when Commission counsel asked him why it was that he could recall the contents of the missing letter of resignation at this hearing, but when asked during the pre-hearing conference call of September 30, 2002, he replied he had “no specific recollection” of its contents, as noted in the Tribunal’s Interim Decision. He responded by stating that, “I don’t recall anything like that in that letter.” When asked in cross-examination if Ms Bornais had been contractually bound to the hotel, or if she was able to leave, Mr. Desai responded that she had been free to resign, since there were no contracts with any of the employees.
The Tribunal therefore finds that Ms Bornais had no motivation to fabricate a story in order to be free to pursue a better opportunity elsewhere.
(h) Ms Rau's Termination
Mr. Desai testified that Ms Rau was terminated on August 19, 2000, as per Exhibit #6, her ROE, because she had been on 90-day probation, and when Ms Bornais “started showing some of the disabilities as a manager, losing control over manpower, mistakes happening again and again”, Mr. Desai “brought in mature experienced people” and he “tried to bring them up, but there was great resistance from Samantha.” Mr. Desai said that Ms Rau believed she was more qualified than the other staff to be supervisor, and that this was the difficulty.
He testified that he “doesn’t understand” Ms Bornais’ comment that Ms Rau “was hired to be a supervisor.” Mr. Desai said that Ms Rau was only hired to be a “GSA” which stands for “Guest Service Agent”, and which he defined as being a “front desk person”. Instead, Mr. Desai said that Ms Rau was “not cooperating” and “not a team player.” However, during cross-examination, Mr. Desai said that after Ms Bornais left on July 27th, Ms Rau “took partial responsibility” of Ms Bornais’ work, including: scheduling; calling housemates; and the responsibilities shared by Dan Ninkovic and Rody. Mr. Desai said that he was the one who ordered the “re-allocation of responsibilities” after Ms Bornais left, but said that it was an interim measure, and that he told the staff that, “no one yet has been appointed a manager.” Later during cross-examination, Mr. Desai said that after Ms Bornais left, no one was appointed as General Manager, and that he increasingly just gave responsibilities to the night auditor for that shift, but then he also said that “Dan and Rody” were in charge of the employees, which included hiring and training staff. Mr. Desai acknowledged that Ms Bornais had also hired Dan Ninkovic and Rody Batkai, whose performance met with his approval.
(i) Request that His Wife Check All Employees' References
While he was not concerned about Ms Rau’s performance, he had left it to Ms Bornais to check all the references, and felt he “needed to hire them at the end of ninety days”. He stated that he had asked Ms Bornais if she knew that Ms Rau “had been caught stealing at another hotel.” Mr. Desai testified that he asked his wife, who he said has always been an employee of the hotel, to check the references for Ms Bornais and “on all employees”.
Mr. Desai said that he asked his wife to check all the references because he was working the dayshift at Ford in Michigan, and was unable to do it. During cross-examination, he clarified that he worked the regular midnight shift at Ford in June, 2000, but that he began a new assignment in July, 2000 in the Deerborne, Michigan plant, where he worked the regular dayshift. He remained a resident of Windsor and commuted to the Michigan plant.
He testified that because Ms Arias “had no past experience from other employers, to exclude her” and that this rechecking of references should be “starting from Patricia.” However, during cross-examination, Mr. Desai admitted that he had received Ms Arias’ résumé, contained within her personnel file and marked as Exhibit #11. Also, he admitted that the final page of that résumé contains two work related references, being “Terri Coones, Tickers Manager” and “Chad Day, Taco Bell Manager”, and that neither of these two individuals were contacted during the rechecking of references conducted by Mrs. Desai. While three references were from the fast food rather that the hotel industry, the Tribunal notes that Mr. Desai had claimed Ms Arias had no work-related references to check. This reduced the credibility of his testimony.
(j) His Actions after Receiving Notice of the Complaint
Mr. Desai testified that he only became aware of the allegations made by Ms Arias when he received a package, sent via registered mail, from the “Human Rights Board.” From the nature of his subsequent testimony, the Tribunal inferred that he meant the disclosure package from the Commission. He further testified that his partner Jack had picked up this package from the hotel, and that it must have been in the trunk of his car for “a week or so” before he received it himself. He said that he opened this mail at the “end of October”, which he later identified as “October, 2000” and said he was “shocked and surprised” by it. He stated he could not recall the date of the registered letter. He testified that he neither contacted the Commission nor did he contact a lawyer. He then added that he might have known of the allegations prior to October, 2000, stating that “maybe longer than that” by a period of a few months after Ms Bornais and Ms Rau left.
Mr. Desai testified that he received a letter dated October 5, 2001 sent to him by the Commission’s investigator. This letter was Exhibit #12. Mr. Desai did not respond to it. He admitted that he had received the Complaint, dated December 2000, and that during this period of time, he remained “in shock” throughout that period of time. He also testified that he received a letter from the Commission’s investigator, dated November 2, 2001, and marked as Exhibit #13. In that correspondence, the investigator said that he wished to meet with him on November 7, 2001. Mr. Desai testified that he received this letter “after the fact” and that he contacted him in December, 2001. He further testified that he received a letter from Neil Edwards, Director, Mediation & Investigations Branch of the Commission, dated November 28, 2001, and sent to him priority post, advising him that the matter had not been resolved and that the complaint would be referred to the Commission. It attached the Case Analysis Report, and advised him that he could make a written submission by December 19, 2001. This letter is marked as Exhibit #14. He admitted that he did not make any written submissions to the Commission at that time. Mr. Desai also identified the letter from the Commission dated December 14, 2000, which accompanied the Complaint, and which requested a response from him no later than January 4, 2001. This letter is marked as Exhibit #15.
The Tribunal asked Mr. Desai if he received Exhibits #14 and Exhibit #15, the order in which they were received, and if he had replied to any of them. He agreed that he had received both letters, made no comment about the order of receipt, and testified that, "no, I didn't reply" and said that it was "because it was very hard to spare the time at that point in time." In reply, Mr. Desai stated his lack of familiarity with litigation matters, and added that he had never had to retain a lawyer other than to purchase his hotels, as his explanation for ignoring the letters he received from the Commission. Counsel for the Personal Respondent asked him,"what were you hoping would happen with this matter by you not responding?" He answered by stating, "I was hoping one day to end up in court, and somehow put all the evidence together. I didn't see any light at the end of the tunnel. I was afraid of the damage to my own family values. I'm not that kind of person." He testified that he only appreciated the seriousness of the matter when he attended the voluntary mediation attempt before the Chair of this Tribunal, and at that point, he retained counsel to represent him.
The Tribunal notes Mr. Desai’s explanation as to his failure to reply to the Commission’s investigator in a timely basis, and accords the issue of his delay in responding no weight. It is not relevant to the allegations in dispute in this hearing.
When asked by Commission counsel why he did not make full disclosure as agent for the Corporate Respondent, as directed by the Tribunal, he responded, "I could not. I'm a very busy-oriented man." When he was asked if he had put in pleadings, as ordered, he said, "I didn't do that." While this explanation is rather inadequate, these issues were dealt with by the Tribunal under Preliminary Issues – Appendix “A”, Section 1(a), Pleadings and Disclosures.
(k) His Denial of Ms Rau's Testimony Regarding the Sexual Nature of His Remarks to Staff
During his cross-examination, Mr. Desai was asked about his own admission during his cross-examination of Ms Rau, that his comments were joking in nature. He testified that his jokes were restricted to "my nature, my characteristics, I'm always a happy guy and make people laugh". He specifically denied ever making any comments to Ms Rau about wearing short skirts for "easy access". He testified that he makes "harmless jokes" to "break the ice", but that, "I would never joke, especially to a female, with sexual content, on a sexual matter, or anything like that." Again, he added, "I never had, and never would."
The nature of this office banter reflects the credibility of Mr. Desai and Ms Rau. The Tribunal finds that Ms Rau was much more specific and direct in her answers. Her testimony set out the sexual solicitation of female staff workers by Mr. Desai, which was corroborated by the testimony of Ms Bornais. In contrast, Mr. Desai simply maintained that he is “a happy guy”.
(3) Ila Desai
(a) Her Role as an Employee of the Hotel
Ila Desai is the wife of the Personal Respondent, Sanjay Desai, and is and was at all material times a paid employee of the Comfort Suites Hotel. At the hotel, she takes care of "administrative things that need to be done when Sanjay is not there," including: "any complaints or problems, breakfast, all supplies, repairs and decorations." Ms Desai is also an employee of the Innkeeper Hotel. She described herself as a “one woman operation” at the latter hotel, where she works “a lot in the evening” as the “Manager” there.
(b) Her Telephone Calls to Witnesses
Mrs. Desai testified in chief that she did indeed call Ms Rau, which she said occurred for the first time in June, 2002. When asked why, she responded that she had been unaware of what was happening until that time, and that she called her to ask what was happening. She then added that she became aware of what was happening because in early June, 2002, she read a package sent to her husband from the Commission alleging sexual harassment. This was the first she learned of these allegations, Mr. Desai had not told her. Mrs. Desai testified that she found Ms Rau's telephone number in the package, and thought she should call her, since "when she worked there, we were friends." Mrs. Desai testified that she asked Ms Rau, "why didn't they say anything while I was there?" Mrs. Desai also testified that she asked Ms Rau "what was happening there." She then testified that Ms Rau was "nice and comforted" her. Mrs. Desai denied threatening Ms Rau or trying to influence her testimony. Mrs. Desai said that she called her back the same day, because Ms Rau had to cut her off to pick up her son. Mrs. Desai said that during their second telephone conversation, Ms Rau was "very nice to me" and that they "joked about Sanjay a few times." Mrs. Desai testified that she did not make any threats or promises in an attempt to influence Ms Rau's testimony during the second call. This was her last contact with Ms Rau.
During cross-examination, Mrs. Desai testified that as well as calling Ms Rau, she also telephoned the articling student at the Commission, Ms Khan, Shelly Garrick, and Patricia Bornais upon obtaining the Commission's disclosure package.
While the Tribunal prefers the evidence of Ms Rau as to the nature of these calls made by Mrs. Desai, these incidents are given little weight.
(c) Reference Checks
Mrs. Desai confirmed that she did reference checks on the Comfort Suites Hotel employees in July, 2000. The purpose of checking the references was due to negative comments made by staff about Ms Rau. Mrs. Desai did not "know the facts, because I'm not there." When asked if she knew whether or not reference checks had already been completed, she said "no". Mrs. Desai said that she checked the references for Patricia Bornais, Samantha Rau, Dan Ninkovic and Rody Batkai. When asked why she checked those references, she responded that they "were thinking of bringing up those people."
She testified that she checked Ms Rau's references first, because she was a "good worker, I don't deny that" and added, "I'm from the hotel industry, and I can tell." Nevertheless, "because of the other side of her, I was not sure." Mrs. Desai testified that she was "shocked" when she was told by the Manager at the Quality Suites Hotel that Ms Rau had been terminated for stealing. She stated that she told Mr. Desai what she had learned.
Mrs. Desai also testified in chief that she checked the references for Ms Bornais. Again, she testified that this is due to the "other side" of her that she had "heard about from staff." She added that "I wanted to make sure she was the right person." Mrs. Desai testified during cross-examination that it was her decision to check the references, and that she was in fact upset with Mr. Desai and Mr. Patel, because she had asked them if they had checked the references and they said they thought Ms Bornais had. When asked specifically if Mr. Desai had asked her to check the references, she said, "no", which contradicts her husband’s earlier testimony.
Mrs Desai testified that she did not check Ms Arias' references, because "I don't have anything to check on her." She added, "I didn't hear any complaints from the other staff and had nothing to check up on her." She testified that she had not received any complaints about Ms Arias' work, but Mrs. Desai said that "she knew the balancing point", and that, if one were looking, one would find mistakes that could have been avoided. These errors included: failure to process the correct customer's credit card number; renting a room to a customer without a credit card;mistakenly believing a customer who claimed that the manager promised them a free room. She said that she raised her concerns about Ms Arias' mistakes with her husband. She also testified that these had been her own observations.
(4) Rodica Batkai
Ms Batkai, who is known as Rody, began working at Comfort Suites Hotel on July 6, 2000. She was hired by Ms Bornais. Both she and Ms Bornais had worked for the same owner of two different hotels previously, so while they had not worked together directly, they knew of each other. Ms Batkai is now a Manager at the Hotel.
Ms Batkai met Mr. Desai sometime around her second week of work. She only saw Mr. Desai at the hotel briefly, typically at noon, two or three times in July, 2000, although she added that "I don't really remember." She stated emphatically that she had never heard Mr. Desai make any comments of a sexual nature, nor use any profanity, nor make any physical contact with a female employee.
Ms Batkai testified that she was unaware of any complaints of sexual harassment in the summer of 2000, and thought that Ms Bornais was leaving because she had accepted a good position in Niagara Falls. Ms Bornais told her, around July 23rd or 24th, about her new position and that she "seemed exhiliarated" about it. After Ms Bornais left, Ms Batkai was given additional duties by Mr. Desai, and was approached by "both the owners" regarding a new position. Although she did not have prior experience in management, she was familar with the duties of the front desk, and accepted the position as Front Desk Supervisor. She testified that both she and Dan Ninkovic were given additional duties after Ms Bornais left.
Ms Batkai testified that she worked in the mornings, and Mr. Ninkovic worked in the afternoons on the night audit. Ms Rau "confronted" her about the new duties because she "couldn't handle it." She said that this scene took place in mid-August. She then testified that during this scene, Ms Rau told her that, "she'd been offered the same position and she had said yes, and she couldn't understand why the owners did that."
Ms Batkai said that the owners told her that Ms Rau was never offered the position, but they had been looking to hire someone, and "then the owners came up with this alternative." After she told the owners of the scene between herself and Ms Rau, Ms Batkai carried on with her front desk responsibilities, but Ms Rau "was still giving me a hard time." She said that they stayed away from each other, and then the owners told her that Ms Rau "didn't work there any more."
Ms Batkai said that when Ms Rau came in to pick up her last cheque and separation papers, she was "outside yelling and screaming at me." Ms Batkai believes that Ms Rau was dismissed for her poor attitude. She stated that there were "three or four of us not happy with her around" and that after Ms Bornais left, Ms Rau "acted like a supervisor." However, Ms Batkai added, "whenever she was asked if the owners had appointed her officially, she said that it would happen in the next few days."
Ms Batkai testified that she was unaware of the reference checks being conducted until 2002. She was aware of Ms Rau's previous employment in the hotel industry. She testified that some of the customers who had been handled by Ms Rau and Ms Bornais, and who knew them from previous hotels, became difficult with her after Ms Rau left. In particular, they demanded that Ms Batkai honour rates quoted by Ms Rau and Ms Bornais, who had been giving these customers some special rates that were much lower than normal. It was her view that Ms Rau and Ms Bornais should have had input from the owners before setting special rates for preferred customers.
(5) Branka Barisic
Ms Barisic, also known as Branka or Bianca, testified that, for the last eight years, she has worked at the Marquis Plaza Hotel at the front desk. During the summer of 2000, she wanted additional work, so she took a part-time job at the Comfort Suites Hotel on weekends. She began at the Comfort Suites Hotel in mid-June, 2000, just after it opened. She worked at the front desk for a short period of time, likely two to four weeks. Her shift was set by Ms Bornais and varied. Sometimes she worked from 3 p.m. to 11 p.m., and other times, she worked from 7 a.m. to 3 p.m.
She testified that she saw Mr. Desai occasionally on Saturday mornings, when he would call first and then drop off any missing items, such as tapes and copy paper. She testified that she never saw him make any sexual comments, nor physically touch any employee. She described him as being "very fair and a gentleman." When asked why she resigned, she said it was because of feeling "very frustrated with the situation of the operation among the girls", whom she described as "very negligent". When asked what their names were, she replied, "Pamela and Cynthia". She said they were "always together" and "talking behind closed doors." She said that she quit because "Pamela" grabbed her binder from her and said, "do it my way, or don't bother." She then described "Samantha" as arrogant, provocative and flirtatious.
She worked with Ms Arias a few times at the front desk, mostly on shift changes. She testified that Ms Arias had told her that the bosses were nice, cooperative people, and that she never complained to her about the allegations of sexual harassment. She described Ms Arias as being "very young" and inexperienced.
During cross-examination, Ms Barisic agreed that if she only worked there Saturdays and Sundays for three to four weeks, that meant that she only worked there approximately six shifts in total. When shown Exhibit #10, the Front Desk Schedule, she stated that she "had no reason to question it". It stated that "Bianca" was scheduled to work on June 25th from "9 to 1", June 26th to 30th are marked as "off", and July 1st, 2nd and 8th are marked as "7 to 3", "7 to 3", and "7 to 8", respectively. During that same period, "Ligia" was scheduled on June 25th from "3 to 11", June 27th from "3 to 11", on June 28th "Parking Lot 4 to 10", and on July 2nd and 5th from "3 to 11". She testified that based on this schedule, she would have overlapped with Ms Arias only on July 2nd, for about half an hour, likely to exchange cash registers. She added that she and Ms Arias may have been on the same shift during training.
When asked during cross-examination if Agi and Agnes were the same person, she stated that she did not recall that person or persons. Mr. Desai offered that they were the same individual.
Ms Barisic identified Exhibit #16 as the Front Desk Schedule for June 11th to 24th. In it, she was only scheduled to work on Saturday, June 24th from "11 to 3", and "Ligia" was scheduled to work that same day from "7 to 3". Again, Ms Barisic estimated that her overlap with Ms Arias would have been about half an hour in total, likely fifteen minutes at each end of their shifts.
The Tribunal finds that Ms Barisic and Ms Arias only saw each other in passing, and so her evidence is of little weight.
6. FINDINGS OF FACT AND LAW:
After consideration of the testimony of all the witnesses and the documentary evidence before it, the Tribunal is satisfied that the Commission and the Complainant made out a prima facie case on all grounds claimed, and that the Respondents were unsuccessful in rebutting them. On a balance of probabilities, the Tribunal finds that the Complainant’s rights under the Code were repeatedly violated. The following is a summary of the findings made:
(1) The Complainant’s right to equal treatment with respect to employment without discrimination based on sex was indeed infringed;
(2) The workplace was very poisoned, as a direct result of the sexual harassment of various staff members by Mr. Desai. The General Manager was aware of the harassment of her staff. The decision to fire Ms Rau after they “checked references” was a clumsy attempt to destroy her credibility for complaining of the harassment in her own right, and for supporting Ms Arias;
(3) The Complainant was subjected to sexual solicitation and sexual harassment in the workplace;
(4) The sexual solicitation and harassment of the Complainant by Mr. Desai was a clear abuse of power by a directing mind of the hotel;
(5) The demand made on the General Manager by Mr. Desai to terminate the Complainant was a threat of reprisal for rejecting his sexual solicitations; and
(6) The actual termination of the Complainant by Mr. Desai was reprisal for her complaints to the General Manager, which triggered the General Manager’s resignation and her complaint to the franchise’s head office, in addition to being reprisal for rejecting his sexual advances.
Below the Tribunal expands on the reasons for these findings:
(1) Infringement of Ms Arias’ Right to Equal Treatment to Employment without Discrimination
The Tribunal finds that Ms Arias’ right to equal treatment with respect to employment without discrimination based on sex was infringed.
Mr. Desai’s recurring, unwanted, verbal sexual solicitation and his demands for hugs from Ms Arias were vivid examples of this particular breach of the Code. She was only eighteen years old and presumably on probation in her first real job, trying to maintain this position as part of her co-op requirements, when she was subjected to serious discriminatory treatment within the workplace. The intersectionality of the discrimination she experienced based primarily on her gender combined with her tender age was highly unfair, unprofessional and in violation of the Code.
(2) Poisoned Workplace
The Tribunal is persuaded that the Comfort Suites Hotel was indeed a poisoned workplace, as alleged. Ms Bornais testified clearly that she received complaints of sexual harassment by Mr. Desai from three different staff members, being Ms Arias, Ms Rau, and Agi.
(i) Three Different Female Staff Members Complained of the Sexual Harassment to the General Manager
The Tribunal accepts the testimony of Ms Bornais that she had three different female staff members in mind who had spoken to her themselves about their own sexual harassment by Mr. Desai, being Ms Arias, Ms Rau and “Agi”. Furthermore, Ms Rau testified that she frequently discussed Mr. Desai’s sexual harassment of staff with other female colleagues.
In addition to the direct evidence of Ms Arias and Ms Rau, and the corresponding recounting of their conversations by Ms Bornais, there was hearsay evidence throughout the hearing about young female employee named “Agi”. Ms Arias testified about “Agnes” in her evidence about the demands for hugs, under Part 5.1(1) of this decision. Ms Bornais corroborated Ms Arias’ testimony by testifying about Agi’s complaint of sexual solicitation, found under Part 5.1(3)(b) of this decision. During the testimony of Ms Barisic, set out in detail under Part 5.2(5), Mr. Desai advised the Tribunal that "Agnes" and "Agi" were indeed the same individual, and further identified by Mr. Desai in the Front Desk Schedule, marked as Exhibit #10.
It should be noted that “Agi” was not called as a witness by the Commission. Nevertheless, the Tribunal gives some weight to the hearsay evidence of Ms Bornais, that “Agi” had told Ms Bornais that she had been “very close” to Mr. Desai, although she did not articulate what that meant. Ms Bornais said that Ms Rau “knew about Agi.” Ms Bornais testified that, “Mrs. Desai said that Agi was going through a stage in life, and was very revengeful.” The Tribunal relies on Rule 57 of its Rules of Practice, and ss.15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, as amended, to admit this hearsay evidence regarding Agi, although this evidence by itself is given little weight. It is only relevant to explain the context in which Ms Bornais received Agi’s complaint of sexual solicitation along with two other complaints, thus leading to the finding that it was a poisoned workplace.
The Tribunal believes Ms Barisic’s observation that “Pamela and Cynthia” were “always together” and “talking behind closed doors”, with the proviso that “Pamela and Cynthia” were actually Ms Bornais and Ms Rau. It is quite understandable that such serious forms of sexual solicitation and harassment within an office would trigger a significant amount of sound and fury behind closed doors that culminated in Ms Bornais’ resignation and Ms Rau’s termination. Rather than reduce the significance of the testimony of Ms Rau and Ms Bornais, the testimony of Ms Barisic actually reinforced it.
The Tribunal relies primarily on the direct evidence provided by Ms Bornais to find that the workplace was very poisoned. Her testimony was corroborated by the evidence given by Ms Rau, Ms Arias, and to a lesser extent by Ms Barisic’s observation that there was a great deal of discussion behind closed doors.
(ii) The “Reference Checks”
The Tribunal finds that the “reference checks” occurred after Ms Bornais resigned, rather than prior to her resignation as the Respondents claim. The serious inconsistency in the evidence presented by Mr. Desai and Mrs. Desai regarding the circumstances surrounding the reference checks causes the Tribunal to infer that the decision to check references was merely a pretext to discredit the two supervisors in whom Ms Arias confided, one of whom had been sexually harassed herself, and the other who had already resigned.
In particular, the evidence of Mr. Desai and Mrs. Desai about whose decision it was to check the references of all the staff was clearly contradictory. Both of them testified that they could not check Ms Arias’ references because she had no past experience. However, that is in direct contradiction to the two work references on the last page of her résumé, which they had in their personnel file for her, and which is marked Exhibit #11.
Mr. Desai claimed that the decision to check references was made because the owners were having misgivings about Ms Bornais’ ability to manage. Specifically, he testified that he had confronted Ms Bornais with the allegation of theft against Ms Rau from another hotel. He then testified that he had asked his wife to check the references for Ms Bornais and on all the employees.
In contast, Mrs. Desai testified that she took it upon herself to check the references of Ms Bornais, Ms Rau, Mr. Ninkovic and Ms Batkai, in no small measure because she said she was upset with Mr. Desai and Mr. Patel and their handling of this issue.
Mrs. Desai also testified that she checked Ms Rau’s references first, because of complaints from other staff, which contradicts her husband’s testimony that it was due to the allegation of theft from a previous employer.
The Tribunal also finds that the Personal and Corporate Respondents wanted the staff of the hotel to believe that Ms Bornais quit to go to a better position, and that Ms Bornais herself promoted that idea publicly, rather than admit the real reason to the remaining staff.
It is uncontroverted from all the evidence and from their records of employment that Ms Arias was terminated on August 16, 2000 and Ms Rau was terminated on August 19, 2000. The Tribunal finds that the decision to fire both of them was made at the same time and for the same reason, being the Respondents’ attempt to control the sexual harassment issue at the hotel, after Ms Bornais resigned.
(3) Sexual Solicitation and Sexual Harassment
The Tribunal notes the marked discrepancy between the testimony of Ms Arias and Mr. Desai regarding her allegations of sexual solicitation and sexual harassment, and where their evidence conflicts, the Tribunal finds that Ms Arias is by far the more credible witness.
It should also be noted that Mr. Desai made an admission against interest during his cross-examination of Ms Rau, when he asked her if his comments to female staff “were joking or not”. This admission flies in the face of his absolute and repeated denial that he ever made any improper comments to staff, particularly to female staff. For this reason, his credibility on this pivotal issue was vastly reduced.
The Tribunal accepts as true the testimony of Ms Arias regarding the following incidents: the repeated demands for hugs made by Mr. Desai; the various forms of physical sexual harassment that occurred on June 25, 2000, which the Tribunal finds constituted sexual assault; the incident at the front desk where Mr. Desai inappropriately touched her buttocks; and the persistent verbal forms of sexual harassment to several female staff members, which included a marriage proposal to Ms Arias.
The Tribunal finds that Ms Bornais is also very credible witness, and accepts as true her testimony that she had directly received a complaint from Ms Arias regarding Mr. Desai’s sexual harassment of her. The Tribunal accepts the evidence of both Ms Bornais and Ms Rau that they had had a prior conversation regarding Ms Arias’ allegations prior to Ms Arias approaching Ms Bornais directly.
The Tribunal also accepts as true the evidence of Ms Rau regarding Mr. Desai’s ongoing sexual harassment toward female staff members generally. The Tribunal recognizes that it took a certain mettle for Ms Rau to call Mr. Desai a “pig” or a “dog” to his face – jokingly or not, in response to his ongoing sexual solicitation, and finds that this ultimately contributed to his decision to terminate her while she was purportedly on probation. The Tribunal also accepts Ms Rau’s evidence regarding the manner in which he looked at Ms Arias when he spoke to her, and her testimony that Ms Arias did indeed seek out her advice when the sexual harassment escalated. The Tribunal found Ms Rau’s testimony that she advised Ms Arias to seek outside help if she felt she had been harassed to be credible as well.
The efforts made by the Respondents to impeach Ms Rau’s credibility as a witness to this hearing with respect to her past carried no weight with the Tribunal since no witnesses were called to testify as to the truth of the allegations made against her, nor was any conviction brought against her.
While the Tribunal finds that Dejan Ninkovic, Rodica Batkai, and Branka Barisic were all credible witnesses, they were generally not working when Ms Arias was on her shift, and so could not observe much of the interaction between Ms Arias and Mr. Desai. They remained unaware of either the allegations of sexual harassment or of the “reference checks”. Thus, their evidence at this hearing was of little value.
The Tribunal follows the Supreme Court of Canada’s decision in Janzen v. Platy Enterprises Ltd.,1989 CanLII 97 (SCC), [1989], 1 S.C.R. 1252, that sexual harassment is a form of sexual discrimination. As found in Janzen, supra, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being. It limits the conditions of or employment opportunities available to employees on the basis of a characteristic related to gender.
(4) Sexual Solicitation and Harassment Are an Abuse of Mr. Desai’s Power
The Tribunal accepts Mr. Desai’s evidence that he is one of the owners of the Comfort Suites Hotel, and that Patricia Bornais reported to him while she worked there as the General Manager.
The Tribunal finds, based on the testimony of Ms Bornais, Ms Rau and Ms Arias, that Mr. Desai repeatedly abused his position of power to sexually solicit and sexually harass female staff members, and that his abuse of this power was particularly striking vis-à-vis Ms Arias, who, due to her youth and vulnerability as a co-op student in a hotel management program, was perceived to be the weakest prey. In particular, the Tribunal accepts the evidence of Ms Arias that his solicitation and harassment of her escalated, until he called her into Ms Bornais empty office near the front desk on June 25, 2000. Once he had her in a “hug”, he would not let her go. At that critical moment, he nibbled on her ear, maintained an erection, asked her why her “breasts were so hard”, and said he “wanted to eat her”. She had to break away from him, and he continued to pester her. The Tribunal finds that this incident of sexual harassment aggravated by repeated physical touching of her body parts, damaged her feelings of personhood as a very young woman at the earliest possible outset of her career. The Tribunal finds that the Respondents infringed Ms Arias rights contrary to ss. 7(3)(a) of the Code.
(5) Demand on General Manager to Terminate Ms Arias was a Threat of Reprisal:
The Tribunal accepts the evidence of Ms Bornais that Mr. Desai asked her to create a pretext to fire Ms Arias, and that when he failed to justify this to her or to answer the allegations made by various staff members to her, she resigned.
Based on the evidence of Ms Arias, the Tribunal believes that Mr. Desai was angry that she rejected his advances, and retaliated by terminating her employment while she was purportedly on a ninety day probation.
The Tribunal does not believe the testimony of Mr. Desai that Ms Arias’ performance was “poor” and that it justified his decision to terminate her, and relies on the evidence of Ms Bornais that her performance was “average”, and that with training, she would have improved.
The Tribunal hereby finds that the demand made of Ms Bornais to find a reason to terminate Ms Arias was the first act of retaliation against her, contrary to ss. 7(3)(b) of the Code. Subsection 7(3)(b) of the Code states:
(3) Every person has a right to be free from,
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
This provision does not require that a “threat of reprisal” be uttered directly to the Complainant by the Respondents, but that it exists. The Tribunal finds that the “threat of reprisal” did exist in this case, because the Personal Respondent, acting as a directing mind of the Corporate Respondent, demanded that the General Manager “find a reason” to fire the Complainant. Ms Arias was contemporaneously aware of the threat of reprisal. In her testimony, set out in Part 5.1(1)(f) of this decision, she said that when she told Ms Bornais of the harassment, she replied that “she was glad she came to her and told her this because Desai had asked her to find a way to fire her and she didn’t understand why and now she understood the reason why.” Ms Bornais similarly testified, as set out in Part 5.1(3)(a) of this decision, that she had already been briefed on Ms Arias’ allegations of sexual harassment by Ms Rau, but that she “waited for Ligia to approach me on it and that’s when I discussed it with her.” Since the General Manager was the Respondents’ employee, and the staff reported to her, this falls squarely within section 9 of the Code, which proceeds, “No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.” In other words, the decision taken by the Respondents to fire Ms Arias, which they thought would be executed by their General Manager, and of which Ms Arias was aware, was enough to trigger a “threat of reprisal” within ss.7(3)(b) of the Code. This reasoning is similar to the reasoning of Chair Garfield in Payne v Otsuka Pharmaceutical Co.(No.3)(2002),C.H.R.R. Doc. 02-196 (Ont. Bd. Inq.) in which the duty not to condone or further a discriminatory act falls on a “continuum of a duty owed: e.g., traditional employer-employee relationship.” The Tribunal follows the reasoning in Payne, supra, and finds that, the Respondents fall at the far end of this continuum, and cannot escape ss.7(3)(b)of the Code simply because Ms Bornais refused to comply.
(6) The Termination of Ms Arias was also Reprisal for her Internal Complaints
The Tribunal finds that the termination of Ms Rau was reprisal against her for advising Ms Bornais of her own sexual harassment, and thus supports the earlier finding of a poisoned work environment. The Tribunal also finds that by the time Mr. Desai had demanded that Ms Bornais create a pretext to fire Ms Arias, Ms Arias had already complained to Ms Bornais of the sexual harassment she was experiencing. According to Ms Bornais’ evidence, three staff members had complained to Ms Bornais of sexual harassment by the time Mr. Desai asked Ms Bornais to fire Ms Arias.
These allegations from her staff triggered the confrontation with Mr. Desai and her immediate resignation. Her resignation, in turn, triggered a frank discussion between Ms Bornais and Mr. Gray of the head office of the Comfort Suites franchise as to the real reason for her resignation. The Tribunal draws a negative inference from the fact that Mr. Gray was not called to refute this testimony, or to provide any evidence himself.
The Tribunal relies on the evidence of Ms Bornais that after Ms Arias spoke to her, she documented her complaint, wrote up her own letter of resignation, and asked Mr. Desai to meet with her. She then confronted him and when she was not satisfied with his explanation, she handed him her letter of resignation. Further, the Tribunal relies on the evidence of Ms Bornais that she informed Mr. Gray of the true reason for her resignation. The Tribunal further relies on the evidence of Ms Arias that she went to speak to Ms Bornais after the incident on June 25, 2000, which she believes occurred in the beginning of July, 2000. Further, the Tribunal relies on the evidence of Ms Rau that she was terminated after Ms Bornais had already quit, and that she was very surprised by this event. The Tribunal accepts Ms Rau’s evidence that when she asked Mr. Desai why she was being terminated, he responded, “it’s a legal matter now.” The Tribunal finds that Mr. Desai’s termination of Ms Rau for complaining of her sexual solititation to Ms Bornais is further evidence of a poisoned workplace.
The Tribunal finds that the firing of Ms Arias by Mr. Desai was reprisal within s.8 of the Code.
7. REMEDY:
Having determined the question of liability, the Tribunal now sets out its remedial order in accordance with section 41 of the Code.
7.1 Joint and Several Liability
The Tribunal finds that 1329732 Ontario Ltd., operating as the Comfort Suites Hotel, is a closely held corporation. There is sufficient evidence before the Tribunal for it to conclude that Mr. Desai and Mr. Patel were two operating minds of the Corporate Respondent. Mr. Desai took a pivotal role in the establishment of this hotel. Both Mr. Desai and Mr. Patel frequently visit the hotel, and oversee its operations. Mrs. Desai works there as an employee. It is therefore appropriate that the Remedy ordered herein be against the Respondents, jointly and severally.
The Tribunal follows the Supreme Court of Canada’s decision in Robichaud v. Canada (Treasury Board) 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, in which La Forest J. concluded that the Canadian Human Rights Act, S.C. 1976-77, c.33, required that employers be held liable for the discriminatory acts of their employees where those actions are work-related. As noted in Janzen, supra, La Forest J.’s finding was meant to apply liberally to employment and workplace relationships.
To compensate the Complainant for her losses arising out of the infringement of her rights, the Tribunal makes the following order for general damages, damages for mental anguish, and special damages.
7.2 General Damages
The Tribunal has considered the following in making this award: the loss of dignity and worth suffered by the Complainant; the seriousness, frequency and duration of these repeated infringements, which include an escalation of sexual solicitation and harassment that culminates in assault; the loss of dignity she suffered from this poisoned work environment; and the impact of the retaliation and other acts of reprisal on her.
Ms Arias’ loss of dignity and worth flow directly from the infringement of her right to equal treatment with respect to employment without discrimination on the basis of sex, contrary to section 5 of the Code. Further, her workplace had been seriously poisoned by the Personal Respondent’s unwelcome sexual advances of both a verbal and physical nature; sexual jokes and innuendoes. This constitutes discrimination on the ground of sex and sexual harassment under sections 5 and 7 of the Code. Mr. Desai’s unwelcome sexual advances to her escalated to a frightening degree, in which he assaulted her and then demanded that the General Manager create a pretext to fire her based on work performance, clearly violating her rights under ss.7(3) of the Code. Mr. Desai’s act of firing the Complainant was wilfully done. He was angry because she had complained to her supervisors, because her complaints created a ripple effect within the organization, and because she rejected his advances. These violations are in contravention of section 9 of the Code.
The earlier decisions of the (then) Board of Inquiry regarding cases of multiple Code violations stemming from egregious gender discrimination, sexual harassment in the workplace, retaliation and reprisal found in Curling v. Torimiro (No.4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd. Inq.) and in J.D. v. M.G., [2002] O.H.R.B.I.D. No. 9 are both on point and are highly persuasive.
The Tribunal also finds valuable the consideration of the issue of reprisal in the decision of the (then) Board of Inquiry in Ketola v. Value Propane Inc. (2002),2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20 (Ont. Bd. Inq.). In particular, the Tribunal agrees with the reasoning in paragraph 119 of Ketola, supra, that “the right to be free from reprisal or threat of reprisal is as important as the distinct protection from discrimination and harassment.” The Tribunal is also in agreement with the ruling articulated in Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 (Ont. Bd. Inq.), upheld by the Divisional Court at [2002] O.J. No. 1504, that “Reprisal is an intentional act” unlike other breaches of the Code, which may be inadvertent or deliberate. In the circumstances of this case, the Tribunal finds that there were two acts of reprisal – one threatened and the other perfected, which were very deliberate and wilfully made. But for the professional ethics of Ms Bornais, the Respondents might have succeeded in dismissing Ms Arias while purportedly on probation and characterized it as simply an issue of poor performance.
There is an intrinsic value to the infringement of a person’s human rights, which forms the basis of general damages, separate from damages for mental anguish, as per Entrop v. Imperial Oil Ltd. (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd. Inq.), para. 50; aff’d (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Div.Ct.); rev’d in part (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont.C.A.), para. 135 – 137.
The Tribunal finds that her general damages are $25,000, against the Personal and the Corporate Respondents, jointly and severally. This award is consistent with the Tribunal’s award with the award of $25,000 for general damages in J.D. v M.G,. supra, and is less than the $41,000 in general damages awarded in Curling, supra, as the circumstances of that case were even more severe.
7.3 Damages for Mental Anguish
The Tribunal finds that the violation of the Complainant’s rights were both wilfully and recklessly inflicted upon her by the Personal Respondent, and resulted in mental anguish to her. In particular, the Tribunal’s award for mental anguish in this instance is meant to address the damage to her feelings of personhood, and the long-term impact of these events on her future relationships with male colleagues. Moreover, applying the Divisional Court’s ruling in York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 7224 (ON CTGD), 3 O.R. (3d) 360 at 376, the conduct was intentional and the infringement was the purpose of the conduct.
Ms Arias was only eighteen years old at the time of the incidents. It was her first job in the hospitality industry. She is of the view that she was “taken advantage of” because of her youth. She was afraid to go to work, and said that she “didn’t want to go in, even though I tried so hard to do a good job”. She testified that she felt “disgusted and sad”, and blamed herself “because I couldn’t understand why he’d do this to me and not someone else.” During her cross-examination, she reiterated her feelings of having been “treated differently”, adding that “this doesn’t happen to everyone”. She drew the conclusion that Mr. Desai “respects the other employees more” and that he “doesn’t accuse other employees of sleeping on the job.” She testified that her self-esteem went “very low”. Now that she was twenty-one years old, she said that she finally understood that she should never have blamed herself.
While Ms Arias’ age was not relevant to the issue of liability for sexual harassment, the Tribunal finds that the Respondents must be responsible for the extent of the damage that flows from their acts due to her particular vulnerability.
When asked how she felt after the June 25, 2000 incident, particularly with respect to his erection and his ear nibbling, she replied that the “whole situation disgusted me”. She added that it was difficult to appear at this hearing, since she would prefer to forget it ever happened.
In terms of the marriage proposal incident, she testified she was scared and confused and lacked the confidence to tell him to stop. With respect to the incident in which Mr. Desai grabbed her buttocks, she testified that she had been “caught off-guard”. This incident made her feel “abused”, “disrespected” and “like a joke”. She testified pointedly that, “I was there to get used. They were just trying to get whatever they could out of me.”
She said that she felt “very sad and disappointed about everything” after her termination. It was a “confusing time, and everyone had an opinion”, and that she questioned, “what is the right thing to do?”
Ms Arias stated that these events haunt her to this day. She is apprehensive if male co-workers are “a little too nice to me”, and said that while she deals with many men at her place of employment, “I always have to worry it could happen again.”
The Tribunal finds that the Complainant’s mental anguish was severe: she went to the local police station to discuss the assault by her employer; she confided in both of her supervisors; and she confided in her family members. Mr. Desai’s wilful and reckless abuse of power created a moral and professional dilemma within the Complainant, who felt “very sad” and “like a joke”, and who struggled with how best to handle a deeply disturbing Personal and professional issue. The Tribunal accepts that she has ongoing feelings of distrust toward male colleagues, since whatever faith she placed in her first real employer was gravely betrayed.
Further, the Tribunal finds that the acts of retaliation and reprisal against Ms Arias caused her great stress and anxiety. In Entrop, supra, the Court of Appeal upheld the finding of the (then) Board of Inquiry that the actions taken by Imperial Oil against its employee, Mr. Entrop, were acts of reprisal for having brought a human rights complaint. Because Imperial Oil’s acts of reprisal were wilful and reckless, they justified a separate award for mental anguish.
The Tribunal finds that her damages for mental anguish are $5,000, against the Personal and Corporate Respondents, jointly and severally.
7.4 Special Damages
The Tribunal accepts the evidence before it that the Complainant worked on average forty hours per week, at $8 per hour. Her termination meant that she went a month without a wage, and she was required to work in the hotel industry as part of her co-op program.
Ms Arias testified in chief that her college program was based on a semester system specifically arranged so that classes fell on Mondays and Tuesdays and the balance of the week was available to arrange on a “co-op” basis. Since her shift at Comfort Suites was usually from 3 to 11 p.m., and her college classes were in the morning, she testified that she was planning on keeping her job and maintaining her regular shift at Comfort Suites when classes began again in the fall.
It is clear from the paycheque and payroll records marked as Exhibits #7 and #11, and identified by Ms Arias, that Comfort Suites paid her $8 per hour. Exhibit #7 indicates that she worked 60 hours in a two-week pay period, and her testimony indicates that an average work week at Comfort Suites was 40 hours. Based on all of this evidence, the Tribunal is satisfied that Ms Arias worked approximately 40 hours per week on average at the Comfort Suites Hotel, and consistently earned $8 per hour for doing so. She was terminated in August 16, 2000, as indicated in her ROE.
Ms Arias testified that she began her second year of her college program two weeks after her termination. As part of her co-op requirements, she was required to work in the industry in order to graduate. She testified that she could fulfill that requirement with either a paid or volunteer position in the industry. When she was terminated, she took a volunteer position at the Radisson Hotel in downtown Windsor for three days, and then took a volunteer position at Executive Class Catering, where she rendered her services for free for a month, during September 2000.
Exhibit #5 was a one-page document identified by Ms Arias as her “Earnings History Report” from “Metro Catering Executive Class”. It stated “No earnings for Sept./00” at the bottom of the page, and her evidence was that this was not her handwriting. Exhibit #5 also indicated that her first payroll date began on October 14/00, and recorded payroll dates on a weekly basis. She testified that she began in early October 2000 on their payroll but could not recollect the date. At the end of September 2000, the sales manager at Executive Class Catering quit and one of the supervisors offered her a position as a banquet server, earning $8.00 per hour. The Tribunal finds that Ms Arias lost at least six weeks of pay, based on $8.00 per hour and 40 hours per week.
The Tribunal therefore finds that her special damages for loss of income are $1,920.
7.5 Public Interest
In their written submissions, Counsel for the Commission requested a number of public interest remedies. The Tribunal refers to its finding of a poisoned workplace, and believes that some public interest remedies are necessary to protect current and future employees. Those remedies need to foster education on sexual harassment, establish a comprehensive anti-discrimination corporate policy, and a create an internal complaints process within the Corporate Respondent.
The Tribunal finds that within three months of this decision, the Corporate Respondent must implement a comprehensive anti-harassment and anti-discrimination policy and an internal complaints process; and that all management employees and owners of the Corporate Respondent must take an educational training program, and that both of these public interest remedies must be approved by the Commission.
7.6 Post Judgment Interest
In their written submissions, the Commission also requested pre and post judgment interest on any awards made.
The Tribunal finds that to facilitate compliance with the Order herein, post-judgment interest is ordered on all damages, from the date of this decision.
8. ORDER:
1329732 Ontario Ltd., operating as the Comfort Suites Hotel, and Sanjay Desai are ordered, jointly and severally, to pay to Ligia Arias the following amounts within thirty days of this Order:
(1) $25,000 as compensation for her humiliation and loss of dignity resulting from the infringement of her rights under sections 5 and 7, to be free from sexual discrimination, sexual solicitation and harassment, retaliatory treatment for the rejection of such solicitation, and as compensation for the loss of the right to be free from reprisals, as per ss.7(3)(b) and 8;
(2) $5,000 as compensation for her mental anguish caused by the infringement of her rights;
(3) $1,920 as compensation for her loss of earnings after her termination from her employment;
(4) post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.
Further, Sanjay Desai and the Comfort Suites Hotel are ordered and directed to take the following actions to achieve compliance with the Code in respect of their future conduct and future practices of the Corporate Respondent:
(5) implement a comprehensive workplace anti-harassment and anti-discrimination policy, including a definition of harassing behaviours and an internal complaints process, as approved by the Commission, within three months of the date of this Order; and
(6) all management employees and owners are required to take an educational program, at the expense of the Respondents, that is facilitated by an expert on anti-discrimination principles and sexual harassment, as approved by the Commission, within three months of the date of this Order.
Dated at Toronto this 7th day of February, 2003.
“Mary Ross Hendriks”
Mary Ross Hendriks
Vice-Chair
Appendix “A” – Preliminary Issues
(1) Issues Flowing from the Interim Decision
(a) Pleadings and Disclosure
At the commencement of the hearing on the merits, the Tribunal referred to its earlier directions to the Respondents that it was required to file pleadings and make disclosure, as are all parties in accordance with its Rules of Practice. The Rules of Practice are sent to all parties by the Tribunal's Registrar as a matter of course, at the outset of a proceeding. During the June 24, 2002 pre-hearing conference call, the Tribunal referred to the Rules of Practice and directed the Respondents to file pleadings and make disclosure by July 26, 2002.
When these directions were not complied with, the Commission brought a motion for pleadings and production, along with permission to receive the evidence of Patricia Bornais by conference call, since she lives in British Columbia. In the September 30, 2002 Interim Decision (the “Interim Decision”) in this matter, the Tribunal gave the Respondents the brief indulgence that they requested during the motion, and allowed them until October 7, 2002 to serve and file their Responses and make full production. The Tribunal also granted the Commission’s request to receive the evidence of Ms Bornais by conference call during the hearing, subject to the conditions set out in the Interim Decision.
Thus, at the outset of this hearing on the merits, the Tribunal asked counsel for Mr. Desai, and Mr. Desai as agent for the Corporate Respondent, why after having been directed to file pleadings and make disclosure twice, the Respondents have failed to file any pleadings. Mr. Barile, on behalf of both Respondents, apologized, and explained that he was unfamiliar with the full hearing process and thought that the production of willsays was sufficient, which was done very late in the day on October 7th. The Tribunal accepted this apology.
(b) Letter of Resignation of Patricia Bornais
In the Interim Decision, the Tribunal specifically directed the Respondents to produce the letter of resignation of Patricia Bornais, and at that time, the Respondents said it was lost. At the outset of the hearing on the merits, it became clear that all of the parties, and Ms Bornais herself during the course of a move, had misplaced this document. In the Interim Decision, the Tribunal declined to draw an adverse inference regarding the loss of this document, but advised the Commission that it could make such submissions during the hearing on the merits. The Commission did not make any such submissions during the hearing on the merits, nor did it make any such submissions in its final written brief, that an adverse inference ought to be drawn regarding the missing letter of resignation. All parties gave evidence as to their recollection of its contents, as outlined below. In rendering this final decision, the Tribunal is not drawing any adverse inference from the fact that the letter is missing, and relies solely on the oral evidence provided by the parties as to its contents.
(2) The Respondents’ Verbal Pleadings at the Outset of the Hearing on the Merits
The Tribunal then directed Mr. Barile to state at the outset what the response of Mr. Desai is, in lieu of a written pleading. Mr. Barile answered that Mr. Desai’s response is a denial, to the effect that it never occurred, and that he was never a party to the allegations as outlined by the Complainant.
The Tribunal then put it to Mr. Desai, since he elected to act as the agent for the Corporate Respondent, to state whether or not there is any conflict of interest between him and the Corporate Respondent, and whether or not he is making any claim personally against the Corporate Respondent, or vice versa. Mr. Desai answered that there was no conflict of interest between the Respondents. His response, on behalf of the Corporate Respondent, was to deny fully the allegations as baseless and untrue. When asked by the Tribunal, Mr. Barile also confirmed that there would be no cross-claim between his client and the Corporate Respondent.
The Tribunal also asked Mr. Desai if he had anything further to add, or any additional witnesses to call, other than that put forward by Mr. Barile in his written disclosure. He replied that he did not.
The Tribunal accepted Mr. Barile’s explanation for the failure to comply with its earlier Interim Decision and accepted these verbal pleadings from the Respondents in lieu of the written Responses normally required under the Rules of Practice.
(3) Motion by the Commission to Exclude Possible Witnesses
The Commission brought a motion seeking to exclude Mrs. Desai from attending the hearing in case she was called as a witness. Mr. Barile agreed to this request, and the Tribunal requested her to be excused from the hearing room.
(4) Timing of Respondents’ Willsays
At the outset of the hearing on the merits, the Commission noted that two of the Respondents' willsays were made available very late on October 7th, and the third willsay was only made available the day before the commencement of the hearing on the merits. For this reason, Commission counsel stated that while he was prepared to proceed, if something quite surprising were to arise from their evidence, he might request an adjournment or further hearing dates. The Tribunal said that it would consider that request when it was made, and directed them to proceed. During the course of the hearing on the merits, no requests for an adjournment were made by any of the parties.
(5) Late Disclosure of Incomplete Windsor Police Services Form
At the very onset of the hearing on the merits, Commission counsel noted his ongoing disclosure obligation and produced an undated, unsigned and incomplete police services form, three pages in length, which he said was in Ms Arias' handwriting, and that had only come to light very recently. It had a yellow post-it note attached to it, with some names and telephone numbers on it, under the title "sexual assault". The incomplete form was not in the Commission's disclosure package. He said he would not tender it as an exhibit without Mr. Barile's consent, and was meant as a memory aid only. Mr. Barile asked for some time to take instructions on that issue, and later agreed it could be entered as an exhibit. Ms Arias did identify it during her examination in chief. Noting the agreement of the parties that it be entered as an exhibit, the Board did mark it as Exhibit "8 ". Mr. Barile advised the Board that the names and telephone numbers on the post-it note match those of the sexual assault unit of the Windsor Police.
However, because this form is undated and unsigned, and because it is uncontraverted that Ms Arias did not ultimately make a formal complaint to the Windsor Police, the Tribunal attaches no weight to its actual contents, but did permit Ms Arias to use it as a memory aid. The Tribunal relies entirely on the oral testimony of Ms Arias regarding the nature and purpose of her contact with the Windsor Police.
(6) Log Book from the Comfort Suites Hotel
On the second day of this two-day hearing, Mr. Barile advised the Tribunal that the Respondents had only just located the log book from the hotel, where staff had made some notes of day-to-day events. He asked for an indulgence to make it an exhibit. Commission counsel objected, on the basis that not only had it not been disclosed prior to the commencement of the hearing, but that an entire full day of the hearing had already been completed.
The Tribunal ruled from the bench that the objection would be upheld, and while the Respondents and their witnesses could testify as to events surrounding the log book, the log book itself would not be accepted as an exhibit.