Ontario Human Rights Commission v. Motsewetsho, 2003 HRTO 21

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Jillian Morrison, Usila Antoine, Farida Vapiwalla,

Lorraine McLean and Shelly-Ann P. Duhaney

Complainants

-and-

Dickson Motsewetsho (also known as Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots), carrying on business as Patrons Online, Patrons Online . com, Patrons Online.com, Patrons OnLine, Patrons On Line, Patrons Online.Com, Patrons OnLine.Com and/or Patrons ONLINE.COM

Respondent

DECISION

Adjudicator: Mary Ross Hendriks

Date: October 10, 2003

Citation: 2003 HRTO 21

Human Rights Tribunal of Ontario

400 University Avenue, 7^th 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 ) Brian Smith, Counsel

Jillian Morrison, Usila Antoine, Farida Vapiwalla, ) On their own behalf

Lorraine McLean, Shelly-Ann P. Duhaney, )

Complainants )

Dickson Motsewetsho…, Respondent ) No appearance

INTRODUCTION

1There are five female Complainants in this matter who each allege that the Respondent violated her rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Each of the Complainants alleges discrimination based on sex, sexual solicitation and harassment. Ms Antoine and Ms Vapiwalla also each allege discrimination based on ethnic origin, within the context of her allegations based on sex, sexual solicitation and harassment. In addition, Ms Morrison, Ms Duhaney, Ms McLean and Ms Vapiwalla make further allegations of reprisal. The Ontario Human Rights Commission (the “Commission”) referred the subject-matter of these complaints to the Human Rights Tribunal of Ontario (the “Tribunal”) together for a combined hearing, according to ss. 32(3) of the Code.

2Each Complainant alleges that she did not know any of the other Complainants until she independently contacted the Commission with respect to the matters now before the Tribunal.

3Each Complainant alleges that during the course of their job searches, she answered similar job advertisements for an entry-level position that led them to be interviewed by, and in some cases, hired by, the Respondent, at a business called “Patrons Online”, located at 789 Don Mills Road, Toronto, Ontario.

4Each Complainant alleges that the Respondent, in his own personal capacity, and at all material times holding himself out as President and CEO of Patrons Online, discriminated against her, at various times during the interview, hiring or training process, by making various unwanted sexual advances. In each instance, the Complainants testified that they either were not hired, or were hired and then terminated, because they rejected these advances.

5The hearing on the merits of this case was held in Toronto on May 12, 13, 21, 22 and 23, 2003. Although the Respondent was given notice of every step of this proceeding and was given notice of the dates of the hearing on the merits, he failed to participate. He did not attend in person, file any pleadings, participate in either the Tribunal’s Initial Conference Call or the Tribunal’s Pre-Hearing Conference Call (although he was reached directly), nor did he appear at the hearing of the Commission’s preliminary motion to amend its pleading to reflect the aliases of both the Respondent and his business (the “Preliminary Motion”).

6In support of the Preliminary Motion, counsel for the Commission filed a factum and extensive affidavit and documentary evidence, that demonstrated that the Respondent had used a number of personal aliases, including “Dick Motsewetsho”, “Dickson Mot”, and “Dr. Dickson Mots”, and that the Respondent’s business, Patrons Online, carried on business under that name, and other similar names, including: Patrons Online . com; Patrons Online.com; Patrons OnLine; Patrons Online.Com; Patrons OnLine.Com, and Patrons ONLINE.COM.

7The Respondent wrote to the Tribunal on March 12, 2003, requesting an adjournment of the Preliminary Motion in order to retain counsel. This request was denied, because he had repeatedly received notice of this Motion and its previous adjournments, and he had been granted a previous adjournment from the Tribunal’s Initial Conference Call, in order to secure counsel. No counsel ever contacted the Tribunal or appeared on the Respondent’s behalf, and he declined to participate in the Initial Conference Call, after it had been rescheduled to accommodate him.

8In its Interim Decision of March 17, 2003, the Tribunal granted the Commission’s request to amend its Statement of Facts and Issues to reflect the Respondent’s personal and corporate aliases.

9The hearing on the merits proceeded as scheduled, without any appearance by the Respondent. After hearing the testimony of each Complainant and after hearing oral submissions from counsel for the Ontario Human Rights Commission (the “Commission”), the Tribunal provided all parties with the opportunity of filing any additional written final submissions and authorities. Only counsel for the Commission filed additional submissions and authorities on June 9, 2003 (the “Closing Submissions”).

10Counsel for the Commission requested leave to amend the Amended Statement of Facts and Issues within its brief of Closing Submissions, in order to raise the quantum of damages claimed, if the Tribunal, after hearing the testimony of the Complainants, is of the view that the amendments are necessary. The Tribunal finds that such amendments are not necessary, and so declines to make such an order.

11The Tribunal finds that it is appropriate to consider all of the evidence before it, in the absence of the Respondent, and make findings of fact and law, as they pertain to liability and remedy.

ISSUES

12The Tribunal dealt with the following issues, in relation to each Complainant, as applicable:

(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 Complainant’s right to equal treatment with respect to employment without discrimination based on ethnic origin infringed, contrary to ss. 5(1) of the Code?

(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 ss.7(3)(a) of the Code?

(5) Was the Complainant’s termination by the Respondent retaliation for rejecting his sexual solicitations, contrary to ss.7(3)(b) of the Code?

(6) Did the Respondent’s treatment of the Complainant constitute reprisal or a threat of reprisal for asserting her rights, as per s.8 of the Code?

DECISION

13The Tribunal finds that, with respect to each of the Complainants, the Respondent violated her right to equal treatment with respect to employment without discrimination based on sex, and committed ongoing acts of sexual solicitation and harassment, contrary to the Code.

14The Tribunal further finds that an intersectionality of discrimination based on sex and ethnic origin occurred with respect to Ms Antoine and Ms Vapiwalla, contrary to the Code.

15The Tribunal further finds that with respect to Ms Morrison, Ms Duhaney, and Ms McLean, the Respondent’s termination of their employment constitutes unlawful discrimination on the basis of reprisal for the rejection of sexual solicitation, by a person in a position to confer, grant or deny a benefit or advancement, contrary to the Code.

16The Tribunal further finds, that with respect to Ms Vapiwalla, his email message that threatened her with civil action if she took any steps to pursue her legal rights against him, constituted a threat of reprisal, contrary to the Code.

17The Tribunal’s remedial order with respect to these complaints is set out below.

LIST OF WITNESSES

18The Tribunal heard evidence from five witnesses, being each of the five Complainants. The Respondent did not attend the hearing, and no reason was provided for his absence. In order to accommodate their various work schedules, and in light of the fact that none of the Complainants worked together at any given time, they were permitted to give evidence separately on different days, as follows:

(1) Jillian Morrison, Complainant, testified on May 12, 2003;

(2) Usila Antoine, Complainant, testified on May 13, 2003;

(3) Shelly-Ann Duhaney, Complainant, testified on May 21, 2003;

(4) Lorraine McLean, Complainant, testified on May 22, 2003; and

(5) Farida Vapiwalla, Complainant, testified on May 23, 2003.

COMPLAINANTS’ EVIDENCE

19The evidence in this case is set out below, in the order in which the Tribunal heard it.

Jillian Morrison

20Ms Morrison testified that she was nineteen years old and looking for work at St. Stephen’s Employment Centre in January, 2001, when she saw an advertisement in a newspaper and applied to it by faxing her resume from that location. She did not keep a copy of the job advertisement.

21She testified that it was an advertisement for a data entry and customer service position, and that it paid $20 to $22 per hour. Ms Morrison testified that, “it caught my eye because the pay was high, and I didn’t really need qualifications.”

22She received a call for an interview with Patrons Online on January 9, 2001, and went to the interview the next day by public transit. The interview took place in an office building at 789 Don Mills Road, Toronto.

23Ms Morrison testified that Patrons Online shared a receptionist with a number of other businesses. She waited in the common reception area until her interview commenced.

24The Respondent came out of his office and introduced himself to Ms Morrison as “Dickson Mot, President and C.E.O. of Patrons Online” and gave her his business card, indicating the same, which she has since lost.

25She told the Respondent that she was surprised to be interviewed by the CEO. He responded by saying that he takes pride in whom he hires and that he likes to know who is working for him. She testified that he “vaguely” described the company as an internet search engine, and the position had to do with data entry.

26Ms Morrison testified that nothing regarding the position or its duties were explained with any clarity, except for the pay and benefits. In this regard, the Respondent told her that the pay was $20 per hour to start, that it would go up $2 per hour every two weeks, to a certain amount, and that the job included full medical and dental benefits. He also advised her that “Patrons Online” had offices in Atlanta, California and Mexico, and that he lived in California.

27During her interview on January 10, 2001, the Respondent looked over her resume, asked her a few questions, and then asked her for her references. All of this took approximately half an hour and seemed professional.

28When she responded that she did not have her list of references with her, she offered to send it in by fax or give it to him later on. He asked her to meet him later that day and said she could bring the references then. Ms Morrison testified that she did not think the Respondent was asking her on a date and thought it related only to work, so she replied by saying, “sure.”

29She went home on public transportation, wrote up her list of references, and was ready when he called her later on to pick her up and resume the meeting.

30The Respondent picked her up in a black Mercedes at an intersection near King and Dufferin, and drove to a parking lot at Bay and Edward. He went into a small store to use the bank machine, and she went into a coffee shop. They met and walked into a building, which she thought looked like a condominium. Ms Morrison testified that she asked him what was going on. He replied by saying that he had the maid prepare dinner, and that she was upstairs cooking. She said she felt surprised, but was not scared, and said that her “vibes weren’t romantic vibes, ” and that, “my mind was on the job.”

31They entered his unit and there was a maid in the kitchen cooking. Ms Morrison sat down on the couch and the Respondent was on the telephone in a different room. Once he was off the telephone, rather than speaking to her, they watched television. They were both sitting on the couch, each at the far end, and she began to feel awkward. The Respondent asked the maid to go out and buy wine, and gave her the money to do so.

32After the maid left, the Respondent began talking to her about things that had no relevance to the position . He told her that he liked the United States more than Canada. He also told her of another male employee at Patrons Online who had been flirting with a female employee there and asking her to be his “second wife” based on the male employee’s culture, which the Respondent said allowed men to have more than one wife. After he was done telling her stories that she felt were “weird”, he asked her how old she was, and if she had a boyfriend. She told him that she was nineteen.

33The maid served them dinner in the living room. The maid then went into other rooms to tidy up the dishes and do other things. At some point during their dinner, the maid left. Both before dinner, and during dinner, the Respondent told her that she needed “a rich boyfriend to take care of her”, to which she responded by saying, “I don’t need someone to take care of me.”

34During dinner, the Respondent discussed women whom he knew, who liked him. Ms Morrison tried to steer the conversation back to business, but he did not “pick up on the hint and carried on.” He told her that he “wanted to have a relationship with her”, that he “cares about her”, that he “never lets the people he cares about suffer.” She responded by telling him that, “I’m not interested in that”, but it “doesn’t matter what I said”, he persisted.

35The Respondent poured Ms Morrison an alcoholic beverage and told her to “get comfortable”. She testified that he tried to touch her, kiss her, and push himself on top of her. She said that she “froze up” and asked herself, “how the hell did I get myself in this situation?” She pushed him away. He angrily responded that, “I don’t need this - I don’t want a relationship with you, this is too much stress.” She replied, “I don’t care, I’m not interested in that.”

36Ms Morrison testified when she said that she wanted to go, he asked her to stay the night, and then tried to physically approach her again. She stood up to leave. He tried to talk her out of leaving and then offered to drive her home. She declined and took a cab.

37Ms Morrison testified that, on January 11, 2001, being the next morning, she resumed her job search. The Respondent left her a voice message stating that he had another position that would start right away. She returned the call, and went in to Patrons Online to discuss it with him. He behaved professionally and did not mention any previous incidents. The Respondent advised her that she could “start training right now.” She began training that day, around noon, with a training manager named Alexander Mukendi. Her training that afternoon consisted of practising what to say during outbound calls to contacts listed on the computer.

38Mr. Mukendi was not called as a witness, and counsel for the Commission advised the Tribunal that the Commission had been unable to locate him.

39Ms Morrison stated that the Respondent told her that this position started at $12 per hour, and went up $2 per week, up to $20 to $25 per hour, depending upon one’s ability to do the job, bonuses, and full medical and dental benefits. The hours of work were Monday to Friday, 9 a.m. to 5 p.m. He described the duties of the job as calling existing customers listed in their database.

40Ms Morrison testified that Mr. Mukendi asked her to be at work the following day at 8:30 a.m., for further training. However, she advised the Respondent that she took public transportation and could not attend until 9 a.m. The Respondent said, “That’s OK, because you’ll come out tonight with me to listen to music and stay at my place and I’ll drive you to work in the morning.” She answered by saying, “No, I’m not doing that.” She said that the Respondent was “pushy about it” and “not listening again”, and handed her “something folded up with a yellow sticky” that turned out to be $20 and a note with an address written on it: Exhibit “2”. The address contained in Exhibit “2” is consistent with her earlier testimony about the location of his condominium. When he handed it to her, he said, “catch a cab to my house”, but she answered by saying, “I’m not going.” The Respondent then said, “I’ll see you at my place at 9”. She replied, “I’m not going, I’m leaving”, and went home.

41Ms Morrison testified that she went to work the next day, being Friday, January 12, 2001. She did not go to the Respondent’s condominium the night before, as asked. On the morning of January 12, 2001, just before 9 a.m., the Respondent asked Ms Morrison to wait in the reception area. He told her, “I’m busy and you’re late, so go wait for me at the front.” She testified that he left her sitting in the common reception area for over two hours, before he asked to see her in his office. He told her she was late for work again, and told her to go home.

42Ms Morrison retorted and said to the Respondent, “The only reason you’re asking me to come home is because I didn’t go to your house last night, I didn’t do what you wanted me to do. I told you yesterday that I wouldn’t be here until 9 a.m.” He replied, “I have to go. There are people waiting for me.” At this point, she began to leave Patrons Online, and the Respondent told her to call him at 4 p.m. so that he could tell her what he decided to do with her. Ms Morrison said she was hostile when she replied, “I don’t have time to play and wait. I have to know if I still have a job and you can tell me now. I need to know. You can’t do this to me, I can’t wait until 4.” He rushed her out of the office and she took public transportation home.

43Ms Morrison did call the Respondent back on January 12, 2001, at 4:03 p.m. The Respondent said, “I told you to call me at 4 and you’re late so I’ll have to call you later.” He called her back that day at approximately 7 p.m. The Respondent said, “Patrons Online no longer has a position for you.”

44Ms Morrison testified that, “I snapped at him. I started bawling because I needed the job and wasted three days. I freaked on him. I called him an asshole. I told him that this wasn’t the end of this, and that he was going to get into trouble for this. I was yelling and he hung up on me.” The Respondent called her back soon after, and said that he would pay her rent and give her a cheque for the hours she had worked. When the cheque did not materialize, she called back Patrons Online in late January, 2001, and spoke to the Respondent, still seeking this cheque. Ms Morrison testified that he told her, “It’s not the end of the month yet” and that, “I don’t have to do anything for you - I’m doing this out of the kindness of my heart.” She did receive a cheque in the mail, which she believes arrived in February, 2001, dated January 25, 2001, in the amount of $72, and labelled “Pay check January 11^th + 12^th 2001, final pay cheque”: Exhibit “3”.

45Ms Morrison testified that she found alternate employment as a waitress, and commenced that position on Monday, January 29, 2001.

46Ms Morrison testified that she told her grandmother what had happened to her, and said that she “bawled and cried.” She feels that he used the process to “harass and control” her over a three-day period. At one point in her testimony, Ms Morrison said, “I was just upset. Screw this guy. I felt like shit. I’m being used.” Since this incident, she is afraid of interviews generally, stating that, “I worry about people’s ulterior motives” and feels much more cautious now.

Usila Antoine

47Ms Antoine testified that in July 2001, she was looking for work, when she responded to an advertisement in the Human Resources Job Bank for a data entry position that paid between $10 and $12 per hour. She faxed in her resume and did not keep a copy of the advertisement. She was twenty-three years old at that time.

48She was interviewed by the Respondent at Patrons Online on July 27, 2001. He introduced himself as “Dickson Mot, President of Patrons Online”. He asked her to complete an application form and a questionnaire, that asked her to respond to “basic work scenarios”, that indicate “what you would do in that situation.” He left the room while she completed the forms. She took approximately half an hour to complete them. The Respondent returned to the room on his own accord when she was almost done, and closed the door.

49The Respondent glanced at her completed application forms and her resume, but did not ask her any specific questions. He asked if she was African, and wanted to talk about her interests, such as arts and crafts, and travelling. She thought it was a little odd that he wanted to talk about her interests, but everything else seemed fine.

50The Respondent then told her about the position. He said it was an online company, based out of the United States, and that the position was a full-time customer service job that paid $15 per hour. He told her that she could choose to work on weekends, and that those hours were optional. The Respondent also advised her that after she worked there for a year, if she wanted to move to the United States, Patrons Online would help her obtain a green card. He also offered her full dental and medical benefits. Although the advertisement had described the job as “data entry”, and on the interview the Respondent said it was “customer service”, she was very excited when he said that she would have her own little office, and liked the idea of a transfer to the United States in the future.

51Although he had not asked Ms Antoine any questions regarding her resume, he advised her that it was a “three-stage interview process”, and asked her to stay and wait for her “second interview” by a female employee named Farnaz. The Respondent offered to pay Ms Antoine $10 per hour, cash, to do a few tasks while they waited for Farnaz to return to the office.

52Before the second interview, the Respondent asked Ms Antoine where else she had been looking for a job, and if she had received many interviews or call-backs. He also told her that employers look at the applicant’s name, and since “most businesses are owned by white people, they would screen out unusual names.” When asked about her reaction to this remark, Ms Antoine testified that, “I didn’t know what to make of it.”

53Ms Antoine testified that the Respondent then asked her what she liked to do in her spare time. She replied that she liked to go to the movies, spend time with friends and relax. At that point, he told her that there was an Indian movie near the office and asked if she would like to go with him to it following her interview with Farnaz. She replied that she did “not want to go” and thought it was “inappropriate”. When he asked again why she would not go, she reiterated that it was inappropriate. She testified that the Respondent said that the “interview was over and he was just asking her out”.

54At this point, Ms Antoine said she felt frustrated, but needed a job, and thought she could still work for the company without dating the Respondent.

55Ms Antoine testified that the Respondent did not drop the matter when rejected. Instead, he “kept saying that he couldn’t understand” her reasons for not wanting to date him. Specifically, he asked her if “it was because her boyfriend wouldn’t let her go out?” She replied that, “no, I didn’t want to go, I didn’t feel comfortable”. He then asked her, “well, do your parents have you on curfew?” Again, she responded that she did not want to go. He insisted on going to the movies again, and said that if another female employee joined them, “he could see my communication skills and then make a decision”. When she declined, he said, “You’re showing me that you’re not open to trying new things.” She rebuked him by saying, “When it comes to work, I’m very open to trying new things, but when it comes to my personal life, I choose when to be open or not.” Then she added, “Being in a movie, how is she going to see how I talk to other people, I’m just sitting there watching the movie?”

56Ms Antoine testified that after she rejected his advances, the Respondent suddenly became critical of her professionally and personally. He said that she “lacked computer skills”, and that “people her age would have a university degree or be married with children.” He also commented about her lack of work experience. She testified that she felt very badly about his criticisms of her, since she was of the belief that some of what he said was true. Ms Antoine asked him, “if I don’t have these skills, why was I called for an interview in the first place?” He replied, “I could hire you on the spot if I wanted to”, but she did not respond. It was close to the end of the interview, and he said, “your chances are better if you meet her”, and she replied, “it’s getting late.”

57Rather than end the interview, the Respondent asked her to go to the movies again, and she declined. He then asked her to have dinner with him the next day, on Saturday, July 29, 2001. She told him that she did not want to go, and thought she might “have plans”. The Respondent asked her if he could take her to brunch the following Sunday, being July 30, 2001. Ms Antoine testified that she said, “Ok, we can do brunch” because she “was really fed up, we’d gone in a big circle again, and I just said yes so I could go home.” She said she had “no intention of going to brunch with him”. She added that, “I just wanted to brush him off and go home. I was not even thinking about the job then, I just wanted to go home. I was completely fed up with him.” He suggested that they go to a “pancake place” at 1 p.m. on Sunday, and she said, “fine”. Ms Antoine wrote the directions to her house on the back of her resumé.

58After Ms Antoine gave him directions to pick her up for Sunday brunch, the Respondent said that Farnaz only works half-days on Fridays, and that Ms Antoine ought to call her on Monday. He handed her his business card and wrote Farnaz’ telephone number on it. The business card was entered as Exhibit “6”.

59The business card entered as Exhibit “6” identified the business as “Patrons Online”, and in brackets under the name of the business, stated in parentheses, that it was an “Internet Search Engine/Online Business Directory”. In three separate bullets underneath that description, it further described the business as: (1) “Up-to-date business profiles, products/services”; (2) Direct contact with business websites and emails via hyperlink”; and (3) Shop online/market place online/buy and sell.” The bottom right-hand corner of the business card identified its holder as “Dickson Mot, President/CEO”. The back of the business card stated two business addresses: “United States Corporate Office: 106 Oak Terrace Street, Lafayette, Louisiana 70508”; and “Canada Address: 789 Don Mills Road, Suite 500, Toronto, Ontario M3C 1T5”. Finally, the back of the card stated, “Other Offices in California, Oregon and Texas.” In handwriting above these corporate addresses, is the notation “farnaz”, and a Toronto area telephone number.

60When asked how she felt at this point, she responded that, “I was very disappointed in myself – I know people don’t do this on an interview, I should forget about the job – I should have left. I’ve had a lot of bad experiences with men. I don’t need this. Why do bad things always happen to me? I felt I’d made a bad decision.”

61She walked to a coffee shop near Patrons Online, and looked behind her at the office building. She said she felt uncomfortable and went home.

62During the evening of Friday, July 27, 2001, she said she was sitting in the front room of her house talking to a friend on her private telephone line, when she watched a vehicle go back and forth in front. It made Ms Antoine very nervous. She thought it was the Respondent, although she could not see the occupant of the vehicle. The other telephone rang, and it was the Respondent, who said that, “you just missed Farnaz, who was there 10–15 minutes after you left.” She said, “Ok, I’ll call her for sure on Monday.”

63Ms Antoine testified that the Respondent called her mid-afternoon on Saturday, sometime between 12-2 p.m., on her cell phone. She felt angry and frustrated because she was on the other line. She asked him how he obtained her cell phone number. He replied that she had written it down for him. Ms Antoine told him that she only gave it to him for the job application.

64Ms Antoine said she felt angry, and said to the Respondent, “I don’t want to go to the movies with you, to dinner, to brunch, and I don’t want you to call my house phone or mobile, nor am I interested in working with the company anymore. I felt you were well-educated and you would understand what I’m implying.” Before he could reply, she hung up the phone on him.

65She testified that she never heard from him again. She felt good about her decision to end this situation. She said that it was a bad experience that had upset her, but that she had learned from it. She asked that the Tribunal focus on the public remedies involved, so that this does not happen to other women.

66Ms Antoine resumed her job search and began alternative employment on October 10, 2001.

Shelly-Ann Duhaney

67Ms Duhaney testified that in September, 2001, she was twenty-seven years old. She was looking for work, when she responded to an advertisement in a local newspaper, the “Scarborough Mirror”, for a customer service position. She said that the advertisement did not state the hourly wage. Her belief from the advertisement was that the position would involve in-bound calls. She said that the advertisement did not indicate an hourly wage, but did specify that the position was full-time. After she saw the advertisement, she telephoned Patrons Online and spoke to someone. She was offered an interview that afternoon between 2:00 and 4:00 p.m.

68She went to the interview at Patrons Online and identified herself to the receptionist. The Respondent came out and introduced himself as “Dr. Dickson”. He asked her to complete some application forms. She said that the application forms asked her to respond to work scenarios, and essay-style answers were expected. This process took about twenty minutes.

69The Respondent returned and spoke to her and another applicant. He glanced at the forms, and told them that Patrons Online had offices in Canada and the United States. The Respondent told them that it was a ten-year old American-based company, and that its “Head Office” and “most of its offices” were in the United States. He told them that there were two positions, and that they involved contacting customers and providing them with support so that they renewed their “subscriptions” with Patrons Online, although he did not offer any particulars on what that meant. The Respondent said that it was a full-time position, from 9 a.m. to 5 p.m., and that benefits would also be offered after three months of employment.

70Ms Duhaney stated that she realized there was a discrepancy between the advertisement, which had led her to believe the position involved receiving in-bound calls, and the interview, which focussed on out-bound calling. However, she felt she could perform either function, because she had done “customer calling in the past.”

71Her evidence is that the Respondent asked her and the other applicant when they could start, and they both replied “immediately.” He told them both to call in on Monday for training. She testified that they thought they had been hired at that moment. The other applicant left the office before her, because the Respondent asked her to stay back. She thought there was something he wanted to clarify with her, since the whole process to this point had seemed quite ordinary.

72Ms Duhaney stated that once she and the Respondent were alone together in his office, he asked her where she lived. She said, “I live at Neilson and Sheppard with my parents.” He commented that it was “strange to be living with your parents at your age.” He then volunteered that she “should be living with a man and have children and that the man should take care of her.” When she said that she “was fine and had many years to go before starting a family and the whole wedding thing”, he disagreed with her. At this point, however, she was of the belief that he was being very traditional in his thinking, rather than propositioning her. She simply felt surprised he would say this to someone on a job interview.

73She asserted that the Respondent then asked her if she had a boyfriend. When she replied that she did not, he said, “a beautiful lady such as yourself, no man? You need a man to take care of you.” She replied, “no, I don’t think it is appropriate to ask me that question.” He reacted by saying that he was sorry, but that he could not help but feel she should have someone to take care of her, and asked if she would go out with him sometime.

74Ms Duhaney testified that at this moment, she realized that he had gone from commenting on her personal life to asking her out, and that “there were certain things attached to my having this job.” She replied, “no, I don’t think it’s appropriate.” He asked her “why?” She told him that, “it’s supposed to be a job and it wouldn’t be proper for us to be doing that.” The Respondent said, “there’s no problem – you already have the job.” She told him it was “not a good idea” and that she was “not interested in having a boyfriend.” He “told me to call him on the weekend anyways.”

75She testified that the Respondent gave her his home address and telephone number, identified it as such and said it was a “condo”, and said he was giving it to her, “in case [she] wanted to come and see him.” She thanked him for meeting with her and for his time, and said that she would be “speaking to him on Monday.” No further conversation took place. She said she threw away the piece of paper when the interview was finished, but that it was an address “somewhere on Bay”, and that he had told her it was not “far from the Eaton Centre, around Bay and Edward.”

76At this point, she testified that it was her understanding that she had been hired for the position, and that she was supposed to call Patrons Online on Monday, September 24th.

77Ms Duhaney testified that she did not call the Respondent or visit him at his home over the weekend. She did call the office on the following Monday, at 9 or 10 a.m. A female assistant answered the telephone and Ms Duhaney identified herself and said that she was calling to arrange for her training session. The assistant said that she did not know the training schedule, and would speak to “Dickson”, and that he would call her back. The Respondent did not call back, and so she left him a voice message. She called the Respondent’s assistant again, who said she would pass the message along to the Respondent, who did not respond to this third message either.

78Ms Duhaney called the office again on Tuesday, a little after 10 a.m., and the Respondent answered the phone. She introduced herself and said that she had seen him on Friday for an interview, and that he had asked her to call him back on Monday morning. He replied that he was in a meeting and would call her back. He did not. On Wednesday, she called and left a message on his voice mail, and also spoke to the receptionist, who said, “I’ll give him the message, that’s about all I can do.” Ms Duhaney said she never did hear back from him.

79Ms Duhaney testified that she believed that she and the other applicant had been hired. The Respondent had told them to call back to arrange training. He did not mention any caveats, such as their hires being subject to reference checks.

80Ms Duhaney returned to her job search on Thursday, September 27, 2001, when she realized that he would not call her back. She found another job at a daycare centre and began there in April, 2002, after having been out of work since Patrons Online had hired her in September, 2001.

81She testified about her feelings of disappointment. She had believed when she met the Respondent that he was “professional” in demeanour, and that he was a family man, because he was wearing a wedding ring. She said that she never gave him any indication that she was interested in him romantically. She stressed that there were “no mixed signals at my end.”

82She said she felt cheated. She testified that, “my not sleeping with him shouldn’t have prevented me from getting that job.” She added that, “I felt dirty after the whole thing and violated, even though I hadn’t done anything.”

Lorraine McLean

83Ms McLean was twenty-eight years old and unemployed in late August, 2000. She was a financially struggling single mother with a chronically asthmatic child. She needed a job with a good medical plan, preferably near her home in Scarborough. She saw an advertisement for a data entry position when she was at a Human Resources Centre, and applied. She testified that her interview with Patrons Online was on August 23, 2000.

84She went to the interview at 789 Don Mills Road, and met the Respondent, who introduced himself as “Dickson Mot, President and CEO of Patrons Online.” She described him as professional in appearance and well-dressed.

85The Respondent described the business briefly saying it dealt with other businesses and was related to computers. He told her that he had offices in the United States. He said that the job was a data entry position. This portion of the interview lasted about five minutes.

86Ms McLean testified that, very shortly into the interview of August 23, 2000, the Respondent began to ask inappropriate questions of a personal nature. Specifically, he asked her if she had children. When she replied that she has a daughter, he asked Ms McLean if she lived with the child’s father. She said that she did not and deliberately gave him an incredulous “look”.

87The Respondent then asked her if she had a boyfriend, and she said that she did not, and did not want one. She thought he was “just nosy”, and tried to put him off politely because she needed the job. As she put it, “I thought he might be one of those people who want to know your whole life before you get the job.” He asked her why she did not want one, and whether she went out. Although she tried to discourage him from asking personal matters on the interview, he continued to do so. For example, he said that he had someone in the office at Patrons Online with whom he would like to set her up. When she said she was not interested, he said, “well, I’d like to date you.” He said he wanted to go to dinner with her.

88She testified that the Respondent attempted to hand her $30, and said that she could cook him dinner and buy a bottle of wine. They were interrupted by another employee. When that person left, the Respondent confronted her again and said, “you don’t want to go out with me?” Then he said, “why don’t you want to go out with me?” She felt disgusted and said, “No, I don’t want to go out with you, I don’t want your money, and I don’t want to be set up with anyone in your office. I’m just here for a job. A job!” The Respondent asked her, “what was that look for?” Then he added, “hasn’t anybody ever asked you out before? Don’t you have any fun? Don’t you do things?” She responded, “I’m disgusted. I’ve never been insulted like this in my life. This interview is over.”

89Ms McLean testified that when she stood up to leave, he wrote what he said was his cell phone number on a business card and gave it to her. Commission counsel showed her a copy of it, advised the Tribunal that it was included in the Commission’s disclosure package, and it was entered as Exhibit “12 ”. On the reverse side of Exhibit “12” is a handwritten notation, “cell” and a handwritten telephone number.

90Ms McLean said she did not call him and did not hear from him again. She resumed her job search, albeit more cautiously, and was still looking for a position in 2001. She saw an advertisement for a customer service position with an unnamed business, and applied.

91She testified that she was contacted for an interview, which was scheduled for Friday, January 19, 2001. When she went to the address, she realized it was the same building – 789 Don Mills Road. It soon became apparent to her that it was also the same business – Patrons Online. Although she stated that she had “reservations” about this situation, she needed a position to support herself and her daughter.

92She attended the interview with about five other female applicants. The Respondent addressed all of them as a group. He stated that they were hired for customer service positions and should return on January 22, 2001 for job training. He announced that Mr. Mukendi would be training them. She felt comforted by the fact that she had seen the Respondent in a group, and that the training would be done by someone else. She left the room without speaking to the Respondent and without any indication that he recognized her from the previous August. She felt that if she stayed in the group, away from him, it might work.

93She reported for training on January 22, 2001. Ms McLean testified that she and the other new hires all received a full day of training, with a Patrons Online employee named Alexander Mukendi. They practiced work scenarios as a group through role-playing.

94Ms McLean testified that on the same day, the Respondent called her into his office. He told her that she had been the one who had not wanted to go out with him. During this meeting, which lasted five to ten minutes, the Respondent questioned her about personal matters. He asked her if she “had a boyfriend”, and she said “no”. Then he asked her if she had “anyone to support her” or to “take care of her”. She replied, “No, I support myself. I wouldn’t be here if I had someone to support me.” He said, “oh, I’m getting that look again.” Then he told her that he recognized her from her earlier interview. Ms McLean testified that she was “not prepared to put up with that”, and announced that she was getting up and returning to training, which she did. She had no further contact with him on that day.

95She returned to work on Tuesday, January 23, 2001. She testified that, “I swallowed all my pride” in order to do so. She said that the Respondent ordered her out of training and into his office. Ms McLean testified that he told her that he was “prepared to support” her. She felt upset and angry. She confronted him, and asked him what he was expecting in return for such support. She told him again she was not interested in him, and that she was only there to work. She told him that she considered his conduct to be “harassment”.

96On January 23, 2001, there was a heated argument in the office between the Respondent, an employee named Charlene Lewis and Mr. Mukendi. The Respondent and Ms Lewis ended up in a shouting match, and the Respondent ordered her out of the office using profanities.

97Ms McLean testified that she had supported Ms Lewis in this argument, telling the Respondent that Mr. Mukendi did not speak English well enough to be training them and that this was “unprofessional”. Ms McLean said she also told the Respondent that it was “unprofessional” of him to be calling her out of training all the time to go into his office. The Respondent asked her what she meant by that, and then told Ms McLean that she needed to take the day off of work. He said that he would phone her later to let her know if she still had a job. Ms McLean returned to the training room, gathered her things, and left. The Respondent did not call her at home that day.

98Ms McLean stated that she called him back on January 24, 2001, and reached him on the third try. She testified that he told her: “There’s no reason for you to come back.” She asked why. He said, “Too much problems. You don’t want to talk, and you’re too stern.” When she asked if it had to do with Charlene, he became angry on the phone and said, “You don’t want to talk! There’s no need for you to come back. That’s all I have to say.” He ended the phone call at this point.

99Ms McLean testified that she was “angry and livid” at this outcome. She believed that his suggestion to her that she did not want to talk was in reference to her rejection of him. She stated that, “I felt I got fired because I didn’t give my body up.”

100She testified that she has had a history of depression in the past. When she was fired, she stayed at home in bed, and felt she could not deal with what had happened. She had only been there two days and felt that she “fell off the wagon.” She said that this situation “had caused me a lot of pain.” Her mother came over to help take care of her daughter while she was in bed.

101She testified that she felt depressed for about five months after this ordeal and did not look for another job for “a good six or seven months”. Financially, this was very difficult. Ms McLean said that she found alternate employment in July, 2001. She testified that she is still afraid of working with men to this day.

102The Tribunal asked her if she had received a diagnosis for her condition, or any medication. She testified that she had not been formally assessed, and had only seen her family doctor. There was no evidence before the Tribunal of her family doctor’s diagnosis. She was not prescribed any anti-depressants. Counsel for the Commission said that this portion of her testimony relates only to her claim of mental anguish, and that it would not be calling any medical experts.

103Counsel for the Commission brought to the Tribunal’s attention the fact that the Respondent had made photocopies of two cheques he allegedly sent to Ms McLean, and sent them to the Commission as proof that he made some payments to her during their investigation. She denies ever receiving them. Commission counsel showed the photocopied cheques to the Tribunal, as contained under Tab 8 of its Pleadings Brief. One cheque is in the amount of $23.92 and the other is in the amount of $196.75. Both cheques were payable to her. In total, the cheques amount to $220.67. The Tribunal asked Ms McLean if she had sought the cancelled cheques back from her bank. She testified that she could not recall.

104Ms McLean has testified that she did not receive these funds. There is no evidence that the Respondent delivered the cheques to her, or that the cheques were negotiated. The Tribunal accepts Ms McLean’s evidence.

Farida Vapiwalla

105Ms Vapiwalla testified that she was twenty-two years old and searching for a new position in a better working environment in February, 2001. She attended a job fair and was advised by a friend that Patrons Online was hiring.

106She telephoned Patrons Online, and the Respondent, who identified himself as “Dickson Mot”, invited her in for an interview. This call was brief, and the Respondent did not describe any of the job positions available, nor did he describe the nature of Patrons Online’s business.

107Ms Vapiwalla testified that she had two interviews with the Respondent. Her first interview, which she believes took place on or about February 2, 2001, lasted one hour. The second interview, which took place shortly afterwards, lasted over two hours. During those meetings, the Respondent did not clarify the nature of the position for which she was being interviewed. She also said that he did not ask her about her qualifications or references. He did briefly describe Patrons Online at different times as an “internet search engine”, a company that was involved in “business advertising”, as a “software web design”, and as an “online business directory”. Although she felt that there remained a large degree of uncertainty about the nature of the position, and his descriptions of the company seemed somewhat contradictory, she dismissed her early concerns. The Respondent was well-dressed, and the atmosphere of the office “looks like a well-run business”. Ms Vapiwalla said that “I wouldn’t expect anything bad to happen there.”

108At the outset of the first interview, the Respondent asked her about her “nationality”. She replied that her mother is Guyanese, her father is East Indian, and that she was born here in Canada. At that time, she considered this question inappropriate. The Respondent did not comment further about her ancestry.

109He also asked her if “there was anything to prevent me from coming to work on time, such as an infants.” She replied that she had no kids and there was nothing to prevent her from coming to work on time. Again, she said that she realized at the time that this question was strange and inappropriate for a job interview.

110The Respondent asked her if she had a boyfriend, to which she replied that she did. She added that she had been with him for six years, as a “deterrent” to further questions. She tried to steer the conversation back to the job and to Patrons Online. The Respondent asked her about her boyfriend’s occupation. She said that he was an accountant. He replied by asking her where her boyfriend was from. She said that he was from St. Kitts. She sensed his approval of this answer from his mannerisms. At this point, she had her “first sense something was up.” She then recalled that when she walked in to Patrons Online, she only saw young, attractive women working there.

111She testified that the first interview had left her feeling confused. He had spent most of the time either asking her personal questions or being paged by staff and interrupting the interview.

112The first interview ended when he gave her his business card, with no promise of a job, although he said he would call her if there “was anything.” The Respondent called her back a few days after the first interview. He was abrupt on the phone. She thought he sounded busy.

113She stated that, during the second interview, the Respondent gave Ms Vapiwalla some application forms to complete, which included hypothetical test questions of how to manage sales situations. When he returned, he glanced at her answers, and began the discussion portion of the second interview.

114He referred to the call centre. She testified that he gave her no indication if the position was for in-bound or out-bound calls, sales or strictly customer service, nor did he elaborate on the number of persons employed in the call centre. She had the impression that the call centre was very small. He added that Patrons Online had an office in Lafayette, Louisiana, and said that the “job could involve travelling”. He told her he could place her in the United States. When she said that she did not want to relocate, he asked if that was because of her boyfriend. She was stunned. The position was for an entry-level call centre employee, so there was no reason to travel. She believed that the Respondent was “very boastful” and had held travelling out as a perk.

115In addition, the Respondent asked her how she would feel if other managers wanted to date her. She responded that, “I don’t mix business with pleasure.” The Respondent laughed loudly.

116The Respondent asked her why she was not married, and said that in Botswana, where he was from, “the decent thing to do was to get married.” She shrugged and offered no reply.

117She testified that he glanced at her breasts during both the first and second interviews. This made her feel very uncomfortable.

118At the end of the second interview, he leaned in and said that he would see what he could do about getting her a clerical position, and asked her to call him the following day at 11 a.m. for the test results. She felt disappointed. Later that day, she heard a rumour from her friend who had suggested that she apply to Patrons Online, that during interviews with other women her friend knew (who were not the other Complainants in this case), the Respondent had asked them personal questions, phoned them at home at night, or had asked them out on dates during interviews. She said that hearing this rumour crystallized her feelings, which had been that of ambivalence. She now felt “very, very angry.”

119Ms Vapiwalla stated that she called the Respondent back at 11 a.m. on the day after her second interview, as per his request. He asked her to come by his office at 3 p.m. She said she did not have time to go in, but would call him back then. When she called him back at 3 p.m., she asked him what position he was considering her for, and he said that he could not give her that information over the phone. She said that he sounded “hostile” when she asked him, “why not?” He replied, “I don’t like where this conversation is going.”

120During that telephone conversation, she told him that she was aware that other applicants had been treated in the same manner. She told him that she knew he “had invited other girls to the ‘Bamboo’ and was harassing people at home at night, and that I had no interest in being his personal secretary.” She testified that she then told him that he had “wasted enough of my time as it is” and hung up on him. She said that her purpose in making the call was to “tell him off”.

121She wanted to call or e-mail what she thought would be the head office of Patrons Online in Lafayette, Louisiana to complain about the Respondent’s behaviour. She called back the receptionist at Patrons Online at 789 Don Mills Road and asked for the contact information for the Louisiana office. The receptionist passed the call straight through to the Respondent. He recognized her voice and told her that she was “a crazy woman” and “not to tell anyone about this”.

122Ms Vapiwalla said she went onto the internet and sent an inquiry to patronsonline.com asking for the telephone number of the customer service office, in a further attempt to reach what she thought was the American head office.

123Counsel for the Commission entered as Exhibits “16” and “17” respectively, photocopies of the original e-mail messages, containing her message to Patrons Online and the Respondent’s reply of March 26, 2001. Her message contained the subject line, “U.S. location number”, and stated, “please email me the toll free number for the Lafayette Patronsonline location. thank you. i am located in Canada.” His response contained the bolded subject line, “last warning” and stated, “This is last warning to you. If a trash like you every try to insult or accuse me, or call this company again, I will sue you for character deformation and harassment. You have been warned. I am forwarding a copy of this letter to our corporate attorney. It looks like you are a very sick individual. Dickson.” [sic]

124On March 27, 2001, she received a call at home during the mid-afternoon from the Respondent. He shouted obscenities that were specifically directed at her. She could not recall what he said next, but insisted in her testimony that he was “threatening” her to “keep me quiet.” She was very afraid and was crying when she immediately called the Police Department to report what he said and about his e-mail the day before. They advised her that what he did was not considered a threat, and that there was nothing much they could do unless she “wanted to take things further”. However, the police did advise her that they had documented her call. She felt frustrated that they did not take her complaint more seriously.

125On March 27, 2001, out of concerns for her safety since the Respondent had her home address from her resumé, she changed her telephone number to an unlisted number. She also moved soon thereafter, and said that her fear of him was one of the reasons why. She testified that her mother was very afraid for her safety after this incident, too.

126Counsel for the Commission asked Ms Vapiwalla if this matter had had any lingering effects on her. She testified that she is much more cautious now, and will not stand for anyone asking her inappropriate personal questions. She said that she had experienced sexual harassment before, and so this experience at Patrons Online was “very distressing” to her. She is still fearful that she will run into the Respondent one day.

127Ms Vapiwalla testified that she remained employed in her job at the time, throughout the series of events that occurred with the Respondent, and so she has no loss of income claim.

The Respondent’s Personal Identity

128On March 17, 2003, The Tribunal granted the Commission’s Preliminary Motion for, inter alia, leave to amend the Complaints and to file an Amended Statement of Facts and Issues to correct certain misnomers, and to identify the Respondent by his proper legal name.

129In support of this motion, counsel for the Commission filed a factum and extensive affidavit and documentary evidence, that demonstrated that the Respondent had used a number of personal aliases, including “Dick Motsewetsho”, “Dickson Mot”, and “Dr. Dickson Mots.” The testimony of Ms Morrison, Ms Antoine, Ms McLean and Ms Vapiwalla demonstrated that the Respondent had introduced himself to each of them as “Dickson Mot”, and to Ms Duhaney as “Dr. Dickson Mots”. The Respondent failed to attend the hearing of the motion, nor did he file any responding materials with the Tribunal, despite being on notice of this motion from the Commission and from the Registrar of the Tribunal.

130Due to the absence of the Respondent at the hearing on the merits, the Commission resubmitted all of its evidence produced at the motion, as part of an Affidavit, sworn by George Argyropoulos, dated May 15, 2003, to establish the Respondent’s true identity. The Tribunal marked this evidence as Exhibit “8”. Commission counsel also submitted to the Tribunal a copy of an information and appearance sheet relating to fraud charges to which “Dickson Motsewetsho” pleaded guilty and received a suspended sentence. The Tribunal entered this conviction as Exhibit “19”. Commission counsel also entered an information and probation order relating to a count of spousal assault, to which “Dickson Motsewetsho” plead guilty and received a suspended sentence, as Exhibit “20”.

The Business Entity

131On March 17, 2003, the Tribunal granted the Commission’s other request within its Preliminary Motion, to be given leave to amend the Complaints and to file an Amended Statement of Facts and Issues, to indicate that the Respondent was carrying on business as Patrons Online, Patrons Online . com, Patrons Online.com, Patrons OnLine, Patrons Online.Com, Patrons OnLine.Com, and Patrons ONLINE.COM. The Tribunal was satisfied, based on the affidavit evidence filed in support of the Preliminary Motion, that the business entity also had other similar names by which it was known.

132Counsel for the Commission filed detailed evidence before the Tribunal in support of the Preliminary Motion, that traced the business names and forms that had been registered under the Business Names Act, R.S.O. 1990, c. B-17. For the most part, the business was registered as a sole proprietorship in the name of Dickson Motsewetsho. The Respondent’s former spouse, Catherine Hunte, also filed detailed evidence by way of affidavit with respect to the Preliminary Motion. This evidence demonstrated that Ms Hunte was uninvolved in the Respondent’s business activities, despite her name appearing in some, but not all, of the business searches conducted. In her affidavit, Ms Hunte averred that she worked full-time elsewhere at all material times. Further, in Ms Hunte’s affidavit, she denied that she consented to or had any knowledge of the registration of the business in both their names. On the basis of this evidence, the Commission withdrew its earlier request to add Ms Hunte as a Respondent. The Respondent did not appear at the hearing of the Preliminary Motion. He did nothing to counter the extensive evidence put to the Tribunal by the Commission regarding the structure of his business, nor did he seek to cross-examine Ms Hunte on her affidavit.

133Counsel for the Commission has resubmitted all of the documentary evidence with respect to the legal structure of Patrons Online, for the purpose of this hearing, which has been marked as Exhibit “8”. The Tribunal has carefully considered this documentary evidence.

FINDINGS OF FACT AND LAW

134After consideration of the testimony of each of the Complainants and the documentary evidence put before it, there being no evidence from the Respondent to refute or impeach any of this evidence, the Tribunal is satisfied that the Commission and the Complainants have made out a prima facie case on the grounds claimed.

135Based on all the evidence before it, the Tribunal finds that the Respondent’s proper legal name is Dickson Motsewetsho, and that the Respondent has used the following aliases: Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots.

136After hearing the testimony of each of the Complainants, particularly the evidence of Ms Vapiwalla that her attempt to contact what was purported to have been the American Head Office of Patrons Online only led back to the Respondent; after inspecting Exhibits “6” and “12”, being identical copies of the business cards he gave Ms Antoine and Ms McLean, from which he held out to be the President and CEO of an American-based internet business with a Canadian office; and after reviewing all of the documentary evidence filed under Exhibit “8” that indicates the business searches performed of Patrons Online by the Commission, which for the most part only name the Respondent as a sole proprietor; and after reviewing the affidavit of Ms Hunte filed at the hearing of the Preliminary Motion, the Tribunal hereby makes the following factual findings: (1) that, at all material times, the Respondent was the only directing mind and operator of Patrons Online; (2) that Patrons Online was his sole proprietorship; and (3) that it carried on business at its 789 Don Mills Road, Toronto, Ontario location.

Summary of Findings

137The following is a summary of the findings made, for each individual Complainant.

138With respect to Ms Morrison, the Tribunal finds that:

(1) Her right to equal treatment with respect to employment without discrimination based on sex was infringed, contrary to ss.5(1) of the Code;

(2) She was the subject of ongoing sexual solicitation and harassment, of both a verbal and physical nature, that included unwanted touching, kissing and groping, in stark violation of ss.7(2) of the Code;

(3) Her right to be free from sexual solicitation from a person in a position to confer, grant or deny her a benefit was infringed by the Respondent, contrary to ss.7(3)(a) of the Code; and

(4) The Respondent in fact hired her and put her in a training program at his business, only to fire her as retaliation for rejecting his sexual solicitations, contrary to ss.7(3)(b) of the Code.

139With respect to Ms Antoine, the Tribunal finds that:

(1) Her right to equal treatment with respect to employment without discrimination based on sex was infringed during the interview process, contrary to ss. 5(1) of the Code;

(2) Her right to equal treatment with respect to employment without discrimination based on ethnic origin was infringed during the interview process, contrary to ss.5(1) of the Code;

(3) She was subjected to ongoing sexual solicitation and harassment during her workplace interview and after the interview by telephone, contrary to ss.7(2) of the Code; and

(4) Her right to be free from sexual solicitation from those in a position to confer, grant or deny her a benefit or advancement was infringed, because the Respondent made repeated unwanted sexual advances to her during her interview and shortly thereafter, contrary to ss. 7(3)(b) of the Code.

140With respect to Ms Duhaney, the Tribunal finds that:

(1) Her right to equal treatment with respect to employment without discrimination based on sex was infringed throughout the interviewing and hiring process, contrary to ss. 5(1) of the Code;

(2) She was subject to ongoing sexual solicitation and harassment in the workplace during her employment interview and during her offer of employment, contrary to ss. 7(2) of the Code;

(3) The Respondent hired her on the spot during her interview, and then violated her right to be free from sexual solicitation from a person in a position to confer, grant or deny a benefit to her, contrary to ss. 7(3)(a) of the Code, by asking her out while interviewing her and while hiring her; and

(4) Her termination by the Respondent was clearly retaliation for rejecting his sexual solicitations, by his actions in refusing to take her calls or otherwise arrange for her training, when he realized that she was rejecting him sexually, contrary to ss.7(3)(b) of the Code.

141With respect to Ms McLean, the Tribunal finds that:

(1) Her right to equal treatment with respect to employment without discrimination based on sex was infringed by the Respondent, contrary to ss. 5(1) of the Code during her unsuccessful August 2000 interview, and again, after she was hired in January, 2001, during the training period at Patrons Online;

(2) She was subjected to repeated sexual solicitation and harassment by the Respondent, during her interview in August 2000 and again during her employment at Patrons Online in January 2001, contrary to ss.7(2) of the Code;

(3) Her right to be free from sexual solicitation from those in a position to confer, grant or deny her a benefit or advancement was infringed when she was sexually harassed by the Respondent, in his role as President and CEO of Patrons Online, during her August 2000 interview; and was repeatedly infringed during her brief tenure as his employee in January 2001, contrary to ss. 7(3)(a) of the Code;

(4) Her termination by the Respondent in January 2001 was retaliation for rejecting his repeated sexual solicitations, contrary to ss.7(3)(b) of the Code; and

(5) She did not receive the two cheques from the Respondent that total $220.67.

142With respect to Ms Vapiwalla, the Tribunal finds that:

(1) Her right to equal treatment with respect to employment without discrimination based on sex was infringed by the Respondent, contrary to ss. 5(1) of the Code, during the interview process;

(2) Her right to equal treatment with respect to employment without discrimination based on ethnic origin was infringed by the Respondent, contrary to ss. 5(1) of the Code, during the interview process;

(3) She was subjected to sexual solicitation and harassment by the Respondent during her interviews;

(4) Her right to be free from sexual solicitation from those in a position to confer, grant or deny her a benefit or advancement was infringed when she was sexually harassed during her interviews; and

(5) The Respondent’s e-mail message to her of March 26, 2001 threatened her with civil action if she took any steps to pursue her legal rights against him, and thus constituted a threat of reprisal within the meaning of s. 8 of the Code.

143Below the Tribunal expands on the reasons for these findings fact and law:

The Infringement of Their Rights to Equal Treatment to Employment without Discrimination

144The Tribunal finds that each of the Complainants’ right to equal treatment with respect to employment without discrimination based on sex was infringed, contrary to section 5 of the Code.

145The Tribunal finds that the Respondent’s interview questions concerning Ms Vapiwalla’s “nationality”, and his subsequent question regarding the nationality of her boyfriend, violated her right to equal treatment with respect to employment without discrimination based on ethnic origin, contrary to ss. 5(1) of the Code. Similarly, the Tribunal finds that the Respondent’s interview question of Ms Antoine, in which he inquired if she was “African”, also violated her right to equal treatment to employment without discrimination based on ethnic origin. However, in the context in which these questions were posed, the Tribunal believes that their purpose was to sexually solicit Ms Vapiwalla and Ms Antoine by engaging each of them in a personal conversation. Thus, the Tribunal gives them little weight as a separate head of damages, but rather, focuses on their intersectionality as an affront to Ms Vapiwalla’s and Ms Antoine’s sense of personhood.

146The Respondent’s pattern of dealing with prospective employees and new hires clearly indicates that he treats them differently based on their gender, contrary to section 5 of the Code. He insists on asking highly personal questions on job interviews, and regularly crosses interpersonal boundaries. These transgressions transcend many issues: his non-discriminatory breaches of politeness and common courtesy during the interview process, i.e. restating questions already answered and demanding another response, quickly gave way to discriminatory demands that prospective employees speak to him after hours on the telephone; discuss their personal lives; go to the movies with him and another female employee to “demonstrate communication skills” as a prerequisite to going further in the interview process; make him his dinner; purchase wine to consume with him; and be set up on dates with other employees of Patrons Online. This pattern of sex discrimination, contrary to section 5 of the Code, was prevalent throughout their interviews and, for Ms Morrison, Ms Duhaney and Ms McLean, continued after they had been hired and were in training at Patrons Online.

147The Tribunal finds that with each Complainant, the Respondent discriminated against them based on their sex. The Complainants were also subjected to serious, repeated discriminatory treatment in the form of sexual solicitation and harassment by him, contrary to ss. 7(2) of the Code. This is addressed below.

Sexual Solicitation and Harassment

148For the most part, the sexual solicitation and harassment occurred right in the workplace, frequently during job interviews, and in other instances during their job training, where the Complainants were the most captive and vulnerable. The Complainants’ testimony as to his sexual solicitation and harassment of them was clear, unequivocal, and highly credible. The Tribunal finds that the Respondent violated their right to be free from harassment because of sex in the workplace, contrary to ss.7(2) of the Code.

149Some additional sexual solicitation and harassment occurred when the Respondent spoke to them on the telephone, or in the case of Ms Morrison, lured her to his car and then drove her to his place of residence on the pretext of finishing her interview, since she had forgotten her references. Although the discriminatory telephone incidents and one of the discriminatory incidents with Ms Morrison occurred at his place of residence, in all of these situations, they stemmed directly from the Complainants’ workplace relationship with the Respondent, a workplace that the Respondent alone directed and controlled as a sole proprietorship.

150Thus, ss. 7(2) and 7(3) of the Code apply to the discrimination that took place on the telephone or at the Respondent’s place of residence, by virtue of section 9 of the Code. It would be an unfair result to several of the Complainants, and to Ms Morrison, in particular, to do otherwise, since he led her to believe that their after-hours meeting was necessitated by her failure to bring her references to her job interview during normal business hours. She never intended to go to his place of residence, but that is where he took her. At his residence, the Respondent attempted to touch her, kiss her, and push himself on top of her. When she froze in response to this highly discriminatory conduct, he became angry with her.

151The Respondent demanded that Ms Morrison spend the night with him at his residence after he hired her. When she did not go to his condominium, he sent her home from work the next day to punish her. He demanded that she call him later and then he punished her further by telling her that her call was late.

152Ms Antoine was pressured into dating the Respondent, despite her repeated attempts at diverting him and her direct response that it would be inappropriate. When she rejected his sexual advances, he bullied her with further questions, in an attempt to wear down her resistance. Instead of ending her job interview, the Respondent asked her to go to the movies with him, or to dinner, or to brunch. It was only when she agreed to brunch that he was prepared to set up her “second interview” with another one of his employees. This is completely illogical: the Respondent is the owner and the President and CEO of the business, and he had already interviewed her. He could have hired her on the spot if he so chose. The “second interview” was merely the bait he used to create an opportunity to sexually harass her further.

153The Respondent also demanded a chance to date Ms Duhaney and advised her that she needed someone to take care of her. As quickly as he offered her the job, which she accepted, he gave her his home address and telephone number, and suggested that she might want to go to see him. When she failed to contact him at his home address, he refused to take her calls to set up her training session at work.

154Similarly, in her August 2000 interview, Ms McLean was besieged with offers of dinner, requests that she cook him dinner, offers of money to purchase wine, and suggestions that she date other staff at Patrons Online. She literally ran away. When their paths crossed again in January 2001, the tone of his sexual advances was even more aggressive. He told her that he was prepared to support her and she told him that she thought his behaviour constituted harassment. Her rebuke did not dissuade him.

155Like Ms McLean, Ms Vapiwalla was also asked an interview question meant to test her reaction to other managers from Patrons Online dating her. Her rejection of that notion was met with laughter from the Respondent. He demanded to know if she had any children, under the pretext that they would prevent her from being on time for work. He wanted to know if she had a boyfriend, and where he was from. Ms Vapiwalla was asked if her unwillingness to relocate to the United States had to do with her relationship with her boyfriend, and demanded to know why they were not married. He glanced at her breasts during both of her interviews, and told her that the position could “involve travelling.”

156The Tribunal finds that the Respondent’s interview questions of Ms Vapiwalla were also highly sexualized in nature, and had nothing to do with the responsibilities associated with working in a call centre. Moreover, the Tribunal finds that this entry-level call centre position, for which there were no particular skills needed, could not reasonably be expected to include a requirement to travel, since call centres can be located anywhere and customers can reached through local or long-distance telephone connections. Rather, the Tribunal finds that the Respondent was deliberately using vague references to the job requirements in order to sexually solicit and harass Ms Vapiwalla.

Abuse of Power by the Respondent

157The Tribunal finds, based on the testimony of each of the Complainants, that the Respondent repeatedly abused his position of power to sexually solicit and sexually harass young women during interviews. The Tribunal finds that he abused his power in this way during the interviews of Ms Antoine, Ms Duhaney, Ms McLean, Ms Vapiwalla, and in what was supposed to be the subsequent interview of Ms Morrison. The Tribunal finds that he sexually harassed Ms Duhaney again while in the process of hiring her. The Tribunal further finds that the Respondent sexually harassed Ms Morrison, Ms Duhaney, and Ms McLean after they had been hired and were in training. In all instances, the Respondent violated the Complainants’ rights, contrary to ss.7(3)(a) of the Code, and was akin to a sexual predator in the workplace.

158The Tribunal finds that none of the Complainants were prepared to accept the Respondent’s Faustian bargain to trade sex for employment, nor did they in any way welcome any of his sexual advances. Each of them was credible when she testified that she needed the job and was hoping to deter him from making unwanted sexual solicitations.

159The Tribunal finds that treatment of Ms Morrison was the most extreme, in that he lured her to his place of residence on the basis that they were to continue their interview discussions, and then he repeatedly sexually harassed her both verbally and physically, contrary to ss.7(3)(a). The Respondent telephoned her and gave her the job after she walked out on him at his residence, and then proceeded to demand that she stay overnight at his residence during her training program. When she refused to go to his residence, he punished her the next day. The Respondent ordered her to stay in the reception area and miss training, and then sent her home stating that she had been late for work again, contrary to ss.7(3)(a). He further abused his position of power over her by forcing her to call him back repeatedly to see if she still had a job at Patrons Online, which the Tribunal finds constituted a threat of reprisal within the meaning of ss.7(3)(b).

160The Tribunal finds that the Respondent deliberately and callously abused his position of economic power and authority to take advantage of the (then) nineteen-year old Ms Morrison’s youth and vulnerability. The Tribunal finds her evidence that she became emotionally distraught about this wilful and reckless abuse highly credible.

161The Tribunal also finds that the Respondent deliberately abused his position of economic power and authority to sexually harass Ms McLean during two different time periods. This prolonged abuse was wilful and reckless, and has left her emotionally injured. The Tribunal finds that his often repeated comment that he was “prepared to support her”, took on a different meaning when he ordered her out of training on January 23, 2001 and into his office. The Tribunal finds that the first few times the Respondent said this to her, it was sexual solicitation and harassment, and she rebuffed him. However, the Tribunal finds that when he ordered her out of her training session and said it again, it was now an implicit threat to her job security. This latter matter is addressed below under the heading, Reprisal by the Respondent.

162The Tribunal further finds that the Respondent’s abuse of his power was damaging to each of the Complainant’s sense of dignity and personhood, and was consistently wilful and reckless on his part. The Supreme Court of Canada spoke to this precise issue in Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 at para. 44451, “When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.”

163Each of the Complainant’s suffered mental anguish, to differing degrees, as a result. The Tribunal’s findings with respect to mental anguish are addressed below in more detail.

Reprisal by the Respondent

164The Tribunal finds that the Respondent has further misused his position of power as an employer to retaliate against Ms Morrison, Ms Duhaney and Ms McLean by terminating them for rejecting his unwanted sexual advances, contrary to ss. 7(3)(b) of the Code.

165The Tribunal finds that the Respondent threatened Ms Vapiwalla with reprisal, contrary to s. 8 of the Code, when he threatened her “to sue” her for “character deformation” if she pursued any remedies for the discrimination she had suffered.

166With respect to Ms Morrison, the Respondent advised her that, “Patrons Online no longer has a position for you”. The Tribunal finds that her termination was direct retaliation for her refusal to spend the night with him during the incident at his residence, which occurred during what was supposed to have been the continuation of her interview. The Tribunal also finds that this act of reprisal, contrary to ss.7(3)(b) of the Code was wilful and reckless, and that she suffered mental anguish as a result.

167With respect to Ms Duhaney, the Tribunal finds that the Respondent hired her immediately after verbally harassing her because she confronted him with his behaviour. The Tribunal further finds that the Respondent then retaliated by terminating her employment when she refused to visit him at his residence by refusing to take her calls or have other staff take her calls to set up her training at Patrons Online. Based on the evidence of the number of attempts that she made to set up her training session after she had been hired, the Tribunal is persuaded that his failure to respond to her was a wilful act of retaliation contrary to ss.7(3)(b) of the Code, and that she suffered mental anguish as a result.

168With respect to Ms McLean, she was hired on January 19, 2001, and asked to return for job training on January 22, 2001. After a full day of job training, the Respondent resumed his solicitation and harassment of her. His ongoing verbal harassment of her crystallized into an implicit threat of reprisal to her position on January 23, 2001, and became reprisal on January 24, 2001. The Tribunal accepts her evidence that the Respondent called her out of training and told her that he was “prepared to support” her, she asked him what he expected in return and stated that she considered his conduct to be “harassment.”

169Ms McLean escalated the tension between herself and the Respondent on January 23, 2001, by engaging in an office dispute and by telling the Respondent that it was “unprofessional” of him to be calling her out of training all the time to go to the office. The Respondent asked her what she meant by that, and demanded that she take the day off. The Tribunal finds that this was an implicit threat of reprisal to her, since he knew exactly what she meant – she had set a limit on his sexual harassment of her and he was implicitly threatening her with termination by sending her home as a disciplinary measure. Although he said he would call her later and tell her if she still had a job, he did not call. Ms McLean called him back three times on January 24, 2001, and was told that, “There’s no reason for you to come back.” As described more fully in paragraph 95, he told her that she was “too stern.” At this point, the reprisal had crystallized and she had been terminated, contrary to ss.7(3)(b) of the Code.

170The Tribunal recognizes that Ms McLean contributed to the tension within Patrons Online during this office dispute. However, this incident occurred after the Respondent had repeatedly discriminated against her and called her out of training to his office for more harassment. The Tribunal finds that her outburst, while inappropriate, was in direct response to this harassment. The Tribunal adopts the findings made by the Board of Inquiry in Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001), 2001 CanLII 21234 (ON CA), 41 C.H.R.R. D/349 (Ont. C.A.), at para. 29, that there is a causal connection between the outbursts of the Complainant, who has been provoked by the discriminatory environment, and the toll such treatment takes on the Complainant’s ability to function at work. The Tribunal further finds that Ms McLean’s one outburst did not warrant her dismissal. Rather, the Tribunal finds that her dismissal was a form of reprisal for rebuffing his sexual advances, contrary to ss.7(3)(b).

171The Tribunal accepts Ms Vapiwalla’s evidence that the Respondent threatened to “sue” Ms Vapiwalla for “character deformation and harassment” when she attempted to assert her rights by contacting what she had been told was the American Head Office of Patrons Online to lodge a complaint.

172Further, the Tribunal accepts her evidence that she sent an e-mail of March 26, 2001 seeking the “U.S. location number.” She had had a prior telephone conversation with the Respondent in which she strongly confronted him about his behaviour. The Tribunal believes that the purpose of her call was to “tell him off.” The Tribunal is satisfied that he understood that she was angry with him with respect to his actions toward her.

173The Tribunal finds that Ms Vapiwalla’s e-mail of March 26, 2001 constitutes a pending internal complaint of harassment. The Respondent’s e-mail back to her in which he threatened to “sue” her, is retaliatory and is reprisal within the meaning of section 8, as per Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 (Ont. Bd. Inq.).

Similar Fact Evidence

174Each of the Complainants provided the Tribunal with credible, cogent testimony with respect to the events underlying her own complaint. Each Complainant’s own testimony is in itself sufficient to prove the allegations of her particular complaint. The Respondent did not refute any of their testimony at any time throughout this process. In assessing each Complainant’s own personal credibility, the Tribunal considered the threshold set in Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), and is satisfied that each Complainant is a reliable and forthright witness.

175Commission counsel submitted that each Complainant’s testimony ought to be relied upon as similar fact evidence in support of the complaints filed by the other four Complainants herein.

176The Tribunal has the ability to admit similar fact evidence, via section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which governs the admissibility of evidence. The Board of Inquiry relied on that section in Jeffrey v. Dofasco Inc. (No.3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 at D/506 (Ont. Bd. Inq.), at para. 48 to find:

The above provisions of the SPPA give the Board even more flexibility in admitting “similar fact or act” evidence than a court. Relevancy is the key in terms of the admissibility of evidence before the Board. But it does not stop there. Principles of natural justice dictate that prejudice to a party need also be considered. This balancing occurs in the probative value versus prejudice assessment that occurs by any court or tribunal regarding the admissibility of similar fact evidence.

177The Divisional Court upheld the decision to admit similar fact evidence of the Board of Inquiry in Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 at para. 23154, stating, “By virtue of s.15(1) of the Statutory Powers Procedure Act, the Board was entitled to admit and to act on such similar fact evidence and hearsay evidence and did not err in doing either.”

178The Tribunal considered the issue of the admissibility of each of the Complainant’s testimony as similar fact evidence carefully, and weighed the probative value of it against the prejudicial effect of the evidence treated as such. The Tribunal has considered whether or not it rises to the level of striking similarity, or if it meets the lesser test of having probative value, and finds that it meets the level of striking similarity. Throughout the testimony of each of the Complainants, the Respondent’s actions revealed an evidentiary “signature”.

179In the alternative, if the similar fact evidence fails to meet the level of striking similarity, the Tribunal relies on Cory J.’s analysis of similar fact evidence in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at 367, to find that it meets the probative value test:

[W]here similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged facts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.

180There is a pattern of behaviour and a general plan of action on the part of the Respondent, that is sufficient to accord the evidence greater probative value than propensity evidence, and allows the Tribunal to find that the evidence of each Complainant had significant probative value with respect to the reliability and credibility of the other Complainants, as per R. v. H. (T.R.) (2002), 2002 CanLII 44895 (ON CA), 59 O.R. (3d) 161, at para. 27.

181The Tribunal finds that all of the similar fact evidence in this matter would have been directly admissible to an alleged infringement of the Code, standing on its own accord. All of the Complainants are young women who, completely independent of each other, applied for data entry or customer service positions at Patrons Online within a short time-span of each other, all of them complained independently to the Commission of discrimination based on sex and sexual harassment by him, and all of them described the Respondent as the President and CEO of that business and gave very similar physical descriptions of him to the Tribunal during their testimony. Based on the extensive documentary evidence and viva voce evidence received, the Tribunal is convinced that the identity of the Respondent is not at issue, nor the identity of the business entity.

182Ms Antoine, Ms Duhaney, Ms McLean and Ms Vapiwalla each testified as to the nature of the discriminatory interview questions posed by the Respondent, which was very consistent with the discriminatory treatment and questioning of Ms Morrison, during what was meant to have been her second interview, and with the discriminatory treatment of Ms Duhaney, while he was in the process of hiring her. The evidence provided by Ms Morrison, Ms Duhaney and Ms McLean of what occurred after they had been hired and were in training was also very similar and of high probative value. The evidence provided by Ms Antoine and Ms Vapiwalla regarding the intersectionality of discrimination each of them suffered during their interviews with the Respondent was also of high probative value. Finally, the evidence of Ms Morrison, that he took her to his condominium to continue her interview and tried to coerce her into spending the night with him, is consistent with the evidence of Ms McLean and Ms Duhaney that he gave them his home address and telephone number and demanded that they visit him there, and in Ms McLean’s case, buy wine and cook him dinner there. Ms Morrison, Ms McLean and Ms Duhaney’s evidence as to the location of the Respondent’s residence is highly corroborative as well.

183The Tribunal finds that the Respondent misuses his business and his position of power within it to sexually solicit, harass and intimidate young women on job interviews and in their employment relationship with him.

184For all of these reasons, the Tribunal finds that the Respondent has a highly distinctive pattern, or “signature” of discriminatory conduct toward young women who respond to job advertisements at his place of business, and allows the evidence of the Complainants to be entered as similar fact evidence.

REMEDY

185The Tribunal now sets out its remedial order in accordance with section 41 of the Code.

186The Tribunal finds that the business known as Patrons Online, and by all other similar names that it has held itself out as, as set out in paragraph 136, is the sole proprietorship of the Respondent. There is sufficient documentary and viva voce evidence before the Tribunal to conclude that the Respondent is the President and CEO of Patrons Online, its sole owner, and its operating mind. It is therefore appropriate that the Remedy ordered herein be against the Respondent in his own personal capacity, and in his capacity as the owner and operator of Patrons Online.

187To compensate the Complainants for their losses arising out of the infringements of their rights, the Tribunal makes the following order for general damages, damages for mental anguish, and special damages.

General Damages

188The loss of dignity and worth suffered by each of the Complainants flowed directly from the infringement of their right to equal treatment with respect to employment without discrimination, based on sex, and for Ms Antoine and Ms Vapiwalla, based on sex and ethnic origin, contrary to section 5 of the Code.

189The Tribunal finds that the Complainants’ right to be free from sexual harassment in the workplace by an employer is fundamental. Individuals must be able to participate in the workforce without fear of sexual solicitation and harassment from their bosses. The repeated violations of this fundamental right by the Respondent, as set out in section 7 of the Code, brings with it serious consequences, commensurate with the damage done to those who have been wronged.

190The Tribunal is also sensitive to the issue of reprisal, as a separate head of General Damages, as per Ketola, supra and Jones, supra. The Respondent has committed serious acts of reprisal against Ms Morrison, Ms Duhaney and Ms McLean by terminating them for rejecting his sexual advances, contrary to ss. 7(3)(b) of the Code. He threatened reprisal against Ms Vapiwalla in the form of a civil law suit if she asserted her right to be free from discrimination by complaining about his harassment, contrary to section 8 of the Code.

191The Tribunal has considered each of the Complainant’s testimony with respect to the discrimination they suffered carefully, there being no evidence from the Respondent, and has balanced this against the short duration of time periods involved in each instance. The Tribunal finds that the Respondent infringed their rights in a consistent manner with each of the Complainants, and thus has made distinct findings of fact and findings of similar fact evidence.

192The Tribunal has considered the earlier decisions of the Board of Inquiry and the Tribunal regarding cases of multiple Code violations that flow from sex discrimination, sexual solicitation and harassment in the workplace and reprisal, as set out in Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd. Inq.), in deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd. Inq.), and in Arias v. Desai (No.2) 2003 HRTO 1, (2003) 45 C.H.R.R. D/308.

193The Tribunal has also contemplated the Respondent’s pattern of discriminatory interview questions, and follows the decision in Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.), in which the Complainant was found to have been discriminated against during a job interview when she was asked about her age, marital status and family status, contrary to s. 5(1) of the Code.

194Similarly, interview questions regarding ethnic origin, place of birth and nationality were found to be discriminatory in Taylor v. VIA Security Systems Inc. (1987), 1987 CanLII 8560 (ON HRT), 8 C.H.R.R. D/3970, as being contrary to ss. 23(2) of the Code.

195The Tribunal finds that the Respondent’s pattern of interview questions regarding martial status, family status and ethnic origin were indeed discriminatory in and of themselves.

196There is a disparity, however, in the severity and frequency of these violations, and in their corresponding impact on each of the Complainants. Thus, the Tribunal finds that in the interests of fairness, the compensation that the Complainants receive for these breaches of the Code varies between them.

197The Tribunal finds that Ms Morrison’s general damages for the infringements of these rights is $15,000.

198The Tribunal finds that Ms Antoine’s general damages for the infringements of these rights is $5,000.

199The Tribunal finds that Ms Duhaney’s general damages for the infringements of these rights is $10,000.

200The Tribunal finds that Ms McLean’s general damages for the infringements of these rights is $10,000.

201The Tribunal finds that Ms Vapiwalla’s general damages for the infringements of these rights is $8,000.

Damages for Mental Anguish

202The Tribunal finds that the violations of the Complainants’ rights by the Respondent were wilful, reckless, and that his pattern of manipulation and control inflicted mental anguish on each of them, to differing degrees. The Tribunal refers to Arias, supra, at para. 169 in which it applied 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, to find that the conduct was intentional and the infringement was the purpose of the conduct. In support of making awards to each of the Complainants for their mental anguish, the Tribunal also refers to the Board’s earlier decisions in Curling v. Torimiro (No. 4), supra, Ketola v. Value Propane Inc. (No.2), supra, and DeSousa v. Gauthier, supra.

203Ms Morrison was only nineteen years old at the time. She was manipulated into believing that the after-work meeting with the Respondent was a second interview, which was she believed was her fault because she had forgotten to bring her references with her. She did not expect him to take her to his residence, and testified that the experience had taken her by surprise.

204The Respondent was relentless in his sexual solicitation and harassment of Ms Morrison once she was in his residence. He tried to touch her, kiss her and push himself on top of her. He continued to abuse his position of power to give her a job, put her in training, and then demand that she spend the night with him. He fired her over the telephone when she refused his unwanted advances. The Respondent abused and discriminated against Ms Morrison for three days. She testified that she “bawled and cried” over it, and is now afraid of interviews and worries “about people’s ulterior motives.”

205The Tribunal finds that her damages for mental anguish are $2,000, against the Respondent.

206Ms Antoine presented herself as someone having a very high degree of emotional intelligence, and so she responded quickly and effectively to his demand on her interview that she go the movies with him and “Farnaz” to demonstrate her “communication skills”. Nevertheless, she felt wounded by his professional and personal attacks once he realized that he could not control her, causing her to let her guard down. He was persistent with her to go to the movies or have dinner or brunch with him. She became very anxious in her home because he was calling her there after the interview ended. Ms Antoine was very angry when she called him back, told him she would not date him, and hung up on him. The Tribunal finds that the Respondent’s predatory behaviour did create a sense of heightened anger and anxiety in Ms Antoine for a brief period of time.

207The Tribunal finds that her damages for mental anguish are $1000.

208Ms Duhaney was caught off-guard by the Respondent, whom she initially viewed as very traditional in his thinking, rather than as a sexual predator. When she realized that he was asking her out on a date and she said it was inappropriate, he still offered her and another applicant the job. He then gave her his residential address “in case I wanted to come and see him” over the weekend. She threw away the address and called the office on Monday morning to arrange for her training. He would not return any of her calls. At that time, she realized that she had been dismissed for refusing his advances.

209She testified at length that she felt disappointed, cheated, “dirty” and “violated, even though I hadn’t done anything.”

210The Tribunal finds that her damages for mental anguish are $1000.

211Ms McLean was an unemployed, financially struggling single mother with a chronically asthmatic child when the Respondent interviewed her. As well as wanting a source of income, she felt compelled to find a position that had a good medical plan for her daughter.

212Ms McLean was also caught off-guard by the professional demeanour of the Respondent, and initially thought he was “just nosy” when he asked her one prying question after another during her initial interview. When she realized that he was sexually harassing her, she felt disgusted, adamantly refused his suggestion, and stood up to leave. To her shock, she ended up being interviewed by Patrons Online again five months later.

213Ms McLean was interviewed and hired for a customer service position as part of a group of five women, the second time around. She reported for training to the staff person responsible for that function, and was called out of training by the Respondent and sexually harassed. Ms McLean testified that, “I swallowed all my pride,” in order to return to work the next day. He harassed her again and she became aggressive and confronted him. He forced her to take the day off work, and threatened her with dismissal. He fired her the next day over the telephone. She had only worked at Patrons Online for two days when he fired her.

214Ms McLean testified that she was “angry and livid” at this outcome, because, “I got fired because I didn’t give my body up.” She is still afraid of working with men to this day.

215She testified that this situation had caused her tremendous pain and triggered a recurrence of serious depression, which she testified is her pre-existing disability. She “fell off the wagon” and went to bed, unable to cope. Her mother came over to her residence to take care of her daughter because she was unable to do so. Her mother was not called as a witness. She also did not have any medical evidence to buttress her claim, however, the Tribunal finds her to be a highly credible witness.

216The Tribunal awards her $7,000 for mental anguish.

217Ms Vapiwalla’s mental anguish flows directly from her anger that stems from having been sexually harassed, from having her ethnic origin put into issue on an interview, and then her subsequent fear of the Respondent. Her feelings of fear occurred after she attempted to assert her rights and he threatened her with a lawsuit in an email, and made a threatening telephone call to her at home.

218The Tribunal awards her $1000 for mental anguish.

Special Damages

219The Tribunal finds that it is appropriate to award special damages for loss of income to the three Complainants who were hired and then terminated as reprisal for refusing the sexual advances of the Respondent, namely, Ms Morrison, Ms Duhaney, and Ms McLean, in accordance with ss. 41(1)(b) of the Code. Since Ms Vapiwalla was employed elsewhere at the time of her interviews, she suffered no loss of income. Although Ms Antoine was only given the opportunity to have a second interview with “Farnaz” after she agreed to have brunch with the Respondent, neither of which events ever took place, no offer of employment was made to her, nor did it seem imminent. Under the circumstances, the Tribunal declines to award Ms Antoine any special damages.

220The Tribunal is cognizant of the Code’s unique mandate under ss. 41(1)(b) to direct “restitution, including monetary compensation, for loss arising from the infringement”, rather than to be bound by traditional employment law principles. The Tribunal is persuaded, based on the evidence of Ms Morrison, Ms Duhaney and Ms McLean that they did indeed have jobs at Patrons Online, however briefly, and that their terminations flowed directly from the discriminatory conduct and reprisal of the Respondent for rejecting his sexual advances. The Tribunal is further convinced by each of their testimony that they made reasonable efforts to mitigate their special damages by seeking comparable, alternative employment. The Tribunal refers to the decision of the Board in Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161, and believes that the equivalent of four weeks’ pay is fair compensation for this loss for each of them.

221The Tribunal heard conflicting evidence from the Complainants who were hired by the Respondent as to the rate of pay each of them had been promised by the Respondent. The Tribunal refers to paragraph 65 of the Amended Statement of Facts and Issues, in which Commission counsel recommended a calculation based on pay of $12 per hour, multiplied by a 40-hour work-week. The Tribunal is prepared to accept this as a reasonable calculation to use to determine the special damages award.

222The Tribunal awards Ms Morrison, Ms Duhaney and Ms McLean $1920 each for her loss of income, but deducts the Respondent’s payment of $72 for lost wages made to Ms Morrison from her award for special damages.

Public Interest

223The Tribunal has the authority, pursuant to ss. 41(1)(a) of the Code, to order a party who has contravened the Code to “do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices” [emphasis added].

224The Tribunal is particularly concerned that this Respondent has demonstrated a pattern of discrimination against women, sexually harassing behaviour, abuse of power, and reprisal. The Tribunal finds that he is a sexual predator who uses employment centres of various types to facilitate his discriminatory conduct. His complete lack of inclination to participate in these proceedings, for which he has offered no explanation, causes the Tribunal to conclude that he does not take the law, or his violations of it, seriously. For these reasons, the public interest remedies directed at his future practices are of particular importance.

225The Tribunal hereby directs the Respondent to do the following in order to achieve compliance with the Code with respect to his future practices, and the future practices of any current or future business or businesses that he may own:

(1) implement a comprehensive workplace harassment and discrimination policy, including a definition of harassing behaviours and an internal complaints process and specific notification that complaints arising under such a policy can be taken to the Commission;

(2) provide to all current and future employees a copy of the policy of the Commission entitled, “Policy on Sexual Harassment and Inappropriate Gender-Related Comments and Conduct”;

(3) attend a training program, at his own expense, designed to assist employers and managers in identifying and addressing instances of sexual harassment and solicitation in the workplace;

(4) provide a copy of the Tribunal’s decision in this matter to any office of Human Resources Development Canada or other employment centre at which he recruits or has recruited employees during a five-year period commencing August 1, 2000;

(5) post a copy of the Tribunal’s decision in this matter, forthwith and for a period of one year, in a place accessible and visible to employees, at any current place of business that he owns; and

(6) provide the Commission with the names and telephone numbers of any female employees who he hires or who leave positions of employment at any place of business that he owns, and of any female job candidates who unsuccessfully apply for positions of employment at any place of business that he owns, for a period of two years.

ORDER

226Dickson Motsewetsho, also known as Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots, and his business, Patrons Online, also known as: Patrons Online.com, Patrons Online.com, Patrons OnLine, Patrons On Line, Patrons Online.Com, Patrons OnLine.Com and Patrons ONLINE.COM (the “Respondent”), is ordered to pay to each of the Complainants the following amounts within thirty days of this Order:

227To Jillian Morrison, $15,000 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, and retaliatory treatment for the rejection of such solicitation, as per ss. 7(3)(b) of the Code;

228To Jillian Morrison, $2000 as compensation for her mental anguish caused by the infringement of her rights;

229To Jillian Morrison, $1848 as compensation for her loss of earnings after her termination from employment;

230To Jillian Morrison, post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act, R.S.O. 1990, c. C.43, from the date of this Order.

231To Usila Antoine, $5000 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 intersectional discrimination based on her sex and ethnic origin, sexual solicitation and harassment;

232To Usila Antoine, $1000 as compensation for her mental anguish caused by the infringement of her rights;

233To Usila Antoine, post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.

234To Farida Vapiwalla, $8000 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 intersectional discrimination based on her sex and ethnic origin, sexual solicitation and harassment, and as compensation for the loss of the right to be free from reprisal, as per section 8;

235To Farida Vapiwalla, $1000 as compensation for her mental anguish caused by the infringement of her rights;

236To Farida Vapiwalla, post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.

237To Lorraine McLean, $10,000, 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, and retaliatory treatment for the rejection of such solicitation, as per ss. 7(3)(b) of the Code;

238To Lorraine McLean, $7,000, as compensation for her mental anguish caused by the infringement of her rights;

239To Lorraine McLean, $1920, as compensation for her loss of earnings after her termination from employment;

240To Lorraine McLean, post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.

241To Shelly-Ann P. Duhaney, $10,000, 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, and retaliatory treatment for the rejection of such solicitation, as per ss. 7(3)(b) of the Code;

242To Shelly-Ann P. Duhaney, $1000, as compensation for her mental anguish caused by the infringement of her rights;

243To Shelly-Ann P. Duhaney, $1920, as compensation for her loss of earnings after her termination from employment;

244To Shelly-Ann P. Duhaney, post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act from the date of this Order.

245Further, the Respondent and his business, and any future business he may own, are ordered and directed to take the following actions in achieve compliance with the Code in respect of their future conduct and future practices:

(1) Implement a comprehensive workplace harassment and discrimination policy, including a definition of harassing behaviours and an internal complaints process and specific notification that complaints arising under a policy can be taken to the Commission;

(2) Provide to all current and future employees a copy of the policy of the Commission entitled, “Policy on Sexual Harassment and Inappropriate Gender-Related Comments and Conduct”;

(3) Attend a training program, at his own expense, designed to assist employers and managers in identifying and addressing instances of sexual harassment and solicitation in the workplace;

(4) Provide a copy of the Tribunal’s decision in this matter to any office of the Human Resources Development Canada or other employment centre at which he recruits or has recruited employees during a five-year period commencing August 1, 2000;

(5) Post a copy of the Tribunal’s decision in this matter, forthwith and for a period of one year, in a place accessible and visible to employees, at any current place of business that he owns; and

(6) Provide the Commission with the names and telephone numbers of any female employees who leave positions of employment at any place of business that he owns, and of any female job candidates who unsuccessfully apply for positions of employment at any place of business that he owns, for a period of two years.

246The Tribunal shall remain seized of this matter for a period of twelve months from the date of this Order, in order to deal with any implementation issues that may arise.