Baylis-Flannery v. DeWilde (No. 2), 2003 HRTO 28

Baylis-Flannery v. DeWilde (No. 2)

HR-0466-02

2003-12-16

2003 HRTO 28

Ontario Human Rights Tribunal

CHRR Doc. 03-296

Racheal Baylis-Flannery

Complainant

and

Ontario Human Rights Commission

Commission

v.

Walter DeWilde carrying on business as Tri Community Physiotherapy

Respondent

Date of Decision:

December 16, 2003

Before:

Human Rights Tribunal of Ontario, Mary Ross Hendriks (Vice-Chair)

File No.:

HR-0466-02

Appearances by:

Raj Dhir, Counsel for the Commission

Racheal Baylis-Flannery, on her own behalf

SEXUAL HARASSMENT — poisoned work environment — sexual advances by person in the position to confer a benefit — sexual assault by employer — verbal abuse and denigration — reprisal for refusal of sexual advances

RACE, COLOUR AND PLACE OF ORIGIN — poisoned environment — discriminatory treatment in employment on the basis of race — racial slurs and harassment by employer — reprisal for complaining about harassment — COMMUNICATIONS — pictures — internet — pornography

DISCRIMINATION — definition of discrimination — multiple grounds — HUMAN RIGHTS — definition of "human dignity" — EVIDENCE — similar fact evidence

DAMAGES — damages assessed for discrimination where there are multiple grounds — damages assessed for sexual harassment, racial harassment, reprisal, wilful and reckless discrimination — compensation for injury to dignity and self-respect — REMEDIES — harassment and sensitivity training — sexual harassment policy

Summary: The Human Rights Tribunal of Ontario ruled that Walter DeWilde discriminated against Racheal Baylis-Flannery because of her race and sex, sexually and racially harassed her, made sexual advances, and ultimately terminated her employment because she objected to his conduct.

Ms. Baylis-Flannery was hired by Mr. DeWilde to work as a receptionist in his office. Mr. DeWilde is a physiotherapist and he shared his office in Amherstburg, Ontario, with Ms. Usher, a massage therapist.

Ms. Baylis-Flannery is of mixed Metis and black ancestry. She was 24 years old at the time she was hired, and recently married. She had been working for Wal-Mart earning $9 an hour. She was eager to move into a receptionist position with Mr. DeWilde. The starting pay was less than her Wal-Mart rate ($8 an hour, with a promise of a raise to $12), but she considered it an important opportunity to move into the medical field.

The Tribunal found that Ms. Baylis-Flannery was discriminated against because of a pattern of commentary that was both race and sex-based. Mr. DeWilde told her about his marriage and the state of his sexual relations with his wife, stated his preference for young black girls, described his former black girlfriend, made repeated references to the physical characteristics of blacks and Africans and black women in particular, and left documentary books on Africa on her desk, opened to pictures of naked black women.

In addition, the Tribunal found that Mr. DeWilde engaged in sexual solicitation, and sexual and racial harassment. He asked her out for dinner, he touched her repeatedly — touching her hands, rubbing her upper legs, trying to massage her shoulders, straddling the chair in which she was sitting, tracing the neckline of her blouse, and kissing her. He laughed off her persistent objections to this behaviour. He also made derogatory comments about the physical characteristics of blacks and black women. He forced her to view pornographic websites, including one with a black female escort. In addition, he made unexpected visits to her home, which were unwelcome and disturbing to Ms. Baylis-Flannery.

The Tribunal found that the intersectionality of the discrimination based on sex and race exacerbated her mental anguish. DeWilde sexually and racially harassed her because she is an attractive young black woman over whom, as her employer, he could assert economic power and control. He repeatedly diminished her because of his racist assumptions about the sexual promiscuity of black women.

In addition, the Tribunal found that DeWilde's refusal to give Ms. Baylis-Flannery the promised raise and his termination of her employment were reprisals for her objections to his conduct, including the letter which she wrote to him asking him to stop touching her and to treat her with respect.

The Tribunal awarded Ms. Baylis-Flannery $25,000 in general damages for sex discrimination, sexual solicitation and harassment and $10,000 in general damages for racial harassment. In addition, the Tribunal awarded $10,000 for mental anguish, and $3,384 for lost wages.

The Tribunal directed Mr. DeWilde to implement an anti-discrimination policy, to take an education training program on anti-discrimination principles, and to provide the Ontario Human Rights Commission with the names and telephone numbers of female employees whom he hires, or female candidates who unsuccessfully apply for positions at any place of business that he owns or operates for a period of two years.

See also (No. 1) (2003), CHRR Doc. 03-236 (H.R.T.O.).

CASES CITED

Abdolalipour v. Allied Chemical Canada Ltd. (1996), CHRR Doc. 96-153 (Ont. Bd.Inq.): 140

Arias v. Desai (No. 2) (2003), 45 C.H.R.R. D/308, 2003 HRTO 1: 172, 174

Baylis-Flannery v. DeWilde (No. 1) (2003), CHRR Doc. 03-236, 2003 HRTO 20: 5

Comeau v. Cote (2003), 2003 BCHRT 32, 46 C.H.R.R. D/469, [2003] B.C.H.R.T.D. No. 32 (QL): 143

Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 (Ont. Div.Ct.): 165

Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd.Inq.): 172

deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd.Inq.): 140, 172

Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513: 148

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 162

Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd.Inq.): 172, 174

Imperial Oil Ltd. v. Entrop (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)): 173

Imperial Oil Ltd. v. Entrop (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.): 173

Imperial Oil Ltd. v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 173

Jeffrey v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500 (Ont. Bd.Inq.): 165

Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.): 172

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1: 147

Megens v. Ontario Racing Comm. (2003), 2003 CanLII 26509 (ON SCDC), 64 O.R. (3d) 142: 162

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 126

Morrison v. Motsewetsho (No. 2) (2003), 48 C.H.R.R. D/51, 2003 HRTO 21: 142, 165, 172

Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd. (1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311 (Ont. Bd.Inq.): 140

LEGISLATION CITED

Ontario

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

s. 5(1): 10, 120, 126, 139, 171, 192

s. 5(2): 8, 10, 120, 139, 171, 192

s. 6(2): 140

s. 7(2): 10, 120, 140, 171, 192

s. 7(3)(a): 10, 120, 136, 140, 142, 171, 192

s. 7(3)(b): 10, 120, 155, 171, 181, 192

s. 8: 10, 120, 161, 171, 183, 192

s. 9: 142, 171

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15: 165

AUTHORITIES CITED

Crenshaw, K., "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies" (University of Chicago Legal Forum, 1989): 145

Duclos, Nitya, "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 C.J.W.L. 25: 144

Iyer, Nitya, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queen's L.J. 179: 144

Ontario, Human Rights Commission, "An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims" (The Commission: 2002): 144

INTRODUCTION

1The complainant in this matter alleges that the respondent violated her rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). She alleges discrimination based on sex, sexual solicitation and harassment, race, racial harassment, reprisal.

2The complainant alleges that the violations of her rights under the Code took place during her course of employment with the respondent, Mr. DeWilde. The respondent owned and operated a physiotherapy clinic in Amherstburg, Ontario, where she worked as his receptionist.

3The complainant alleges that the respondent discriminated against her in a way that was both racialized and sexualized, by making various unwanted sexual advances to her as a black woman, by assaulting her, by describing the body parts of other black women and other African or black persons generally to her, by making racist and sexist jokes, by ignoring her efforts to rebuff him, and by committing acts of reprisal against her.

4The hearing on the merits was held in Windsor on October 14, 15 and 16, 2003. Although the respondent had been advised of the dates of the hearing on the merits by his then counsel, Mr. Marley, in May 2003, subsequent to the May 14, 2003, conference call, he failed to participate, and no reason was provided for his absence.

PRELIMINARY MATTERS

5Mr. Marley was counsel for the respondent, and participated in all matters leading up to this hearing, which included the exchange of pleadings and Tribunal-initiated all-party conference calls held to facilitate the process. Prior to the commencement of this hearing on the merits, Mr. Marley brought a motion seeking an order from the Tribunal to remove him as counsel of record for the respondent, and filed an affidavit in support of that motion, dated September 22, 2003. In that affidavit, Mr. Marley deposed that he had advised his client of the dates of the hearing on the merits, that he was unable to locate his client, and that he had no instructions or retainer to proceed with the hearing. Mr. Marley's motion to go off the record was uncontested. The Tribunal granted that order in its interim decision of September 30, 2003, being Baylis-Flannery v. DeWilde, 2003 HRTO 20 [CHRR Doc. 03-236].

6The hearing on the merits proceeded as scheduled, without any communication from or appearance by the respondent. After hearing the testimony of the complainant, her physician, and two other witnesses called to testify on behalf of the complainant, the Tribunal provided all parties with the opportunity of filing any additional written final submissions with it, or making their final submissions orally at the conclusion of the hearing.

7Counsel for the Ontario Human Rights Commission (the "Commission") advised the Tribunal that he preferred to make his final submissions orally, and relied on the Brief of Authorities that he filed with the Tribunal at the outset of the hearing (the "Closing Submissions") to do so at the close of the hearing. The complainant adopts the Commission counsel's closing submissions.

8At the outset of the hearing, counsel for the Commission requested leave to amend the complaint in order to plead s. 5(2) of the Code with respect to racial harassment. The Tribunal noted that the Statement of Facts and Issues that had been served on the respondent, and to which his then counsel served and filed a Response, included the allegation of racial harassment. Thus, the Tribunal found that since the respondent was on notice of this allegation, and had served and filed a pleading contesting it, there was no prejudice to him in allowing the amendment to the complaint itself. Thus, the Tribunal rendered an oral order that permitted this amendment.

9The 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

10The Tribunal dealt with the following issues, in relation to the complaint:

(1) Was the complainant's right to equal treatment with respect to employment without discrimination based on race and sex infringed, contrary to s. 5(1) of the Code?

(2) Was the complainant subjected to harassment in employment by her employer, based on race or sex, or both, contrary to s. 5(2) of the Code?

(3) Was the complainant subjected to sexual harassment in the workplace, within s. 7(2) of the Code?

(4) Was the complainant's right to be free from sexual solicitation from those in a position to confer, grant or deny her a benefit or advancement infringed, contrary to s. 7(3)(a) of the Code?

(5) Was the complainant subjected to reprisal by the respondent for rejecting his sexual solicitations and advances contrary to s. 7(3)(b) of the Code?

(6) Was the complainant's termination by the respondent reprisal for asserting her rights, according to s. 8 of the Code?

DECISION

11The Tribunal finds that the respondent violated the complainant's right to equal treatment with respect to employment without discrimination based on both race and sex, committed ongoing acts of sexual solicitation and sexual and racial harassment, and relies on his related criminal conviction for common assault against her. The Tribunal further finds that the racial and sexual discrimination intersect, contrary to the spirit and purpose of the Code. The Tribunal further finds that his denial of her scheduled wage increase, and his subsequent termination of her, were separate acts of reprisal, contrary to the Code. The Tribunal's remedial order is set out below.

LIST OF WITNESSES

12The Tribunal heard evidence from four witnesses, being the complainant, her physician, and two other witnesses testifying on her behalf. They provided their evidence to the Tribunal, as follows:

(1) Racheal Baylis-Flannery, complainant, testified on October 14, 2003;

(2) Dr. D. Jezdic, treating physician, testified on October 15, 2003;

(3) Stephanie Vasilodimitrakis, witness, testified on October 15, 2003; and

(4) Kristen Whatmore (formerly Kristen Usher), witness, testified on October 16, 2003.

SUMMARY OF EVIDENCE

Racheal Baylis-Flannery

13Ms. Baylis-Flannery is a reserved young woman, of mixed black and Metis ancestry. She testified that she grew up in a religious home, and that her mother is a Pentecostal minister. She said that she reads the Bible frequently and turns to prayer for guidance.

14Ms. Baylis-Flannery testified that in 1999, she was 24 years old. She had been employed at Wal-Mart for four years, where she earned $9 per hour, had received the Sales Associate Award and the "highest raises". When she found out that her first cousin, Stephanie Vasilodimitrakis, had found a better job, she asked her cousin for a favour. Ms. Vasilodimitrakis was the receptionist at Tri Community Physiotherapy. Ms. Baylis-Flannery asked her cousin to give the respondent her résumé because she was hoping to be her replacement, since her cousin had found a better paying position as a medical receptionist. Ms. Baylis-Flannery also wanted to move into the medical field, and saw this as a good way to launch that career path.

15Ms. Baylis-Flannery testified that a few days after she gave her cousin her résumé, the respondent wanted to have an interview with her. She attended the interview with the respondent in mid-October 1999, and he outlined the position and asked her a few questions. She described it as a "basic interview", and said that they seemed to "get along" well. During this interview, she testified that the respondent advised her that the position would pay $8 per hour to start, but that the pay would increase to $12 per hour after the first sixty days.

16In terms of her experience, she testified that she told the respondent that she had previously worked as a receptionist for about one year. She also told him that she was eager and could learn easily. The respondent did inquire whether or not she had any experience as a medical receptionist. She testified that the next day, her cousin told her that the respondent liked her, and asked that she go into the office to speak to him. The respondent offered her the job and she accepted. Ms. Baylis-Flannery testified that Ms. Vasilodimitrakis trained her as the new medical receptionist for the first two or three days of her new employment.

17Although her cousin had told her from time to time that the respondent "gets on my nerves" or that he "irritates" her, she testified that her cousin did not provide her with any specific details about his behaviour.

18Ms. Baylis-Flannery enjoyed her position at the start of her employment at Tri Community Physiotherapy. She learned how to manage patient charts, how to update records, how to bill WSIB's and Greenshield's patients' claims. She testified that she was already familiar with the duties of a receptionist, such as answering the telephone. She testified that she also cleaned the office until the respondent hired cleaning staff, and booked the appointments for the massage therapist, Ms. Kristen Usher. She said that the respondent "seemed really nice" when she first started. She added that he booked his own appointments and oversaw the bookkeeping duties himself.

19Ms. Baylis-Flannery referred to her Amended Complaint, entered as Exhibit 2. She testified that the respondent's unwelcome sexual advances began in early November 1999. She further testified that her employer treated her badly based [sic] because she is black, and that this behaviour often coincided with the unwelcome sexual advances.

20Ms. Baylis-Flannery testified that the respondent began demonstrating sexualized and racialized behaviour towards her, which he instigated, from late November 1999 until the day he fired her, on March 17, 2000. She was clear in her evidence that at no time did she encourage, participate or reciprocate in this behaviour, and that she had taken various steps to stop it.

21She testified that while she was working, the respondent would unexpectedly touch her hands, her arms, rub her upper legs, rub her shoulders and try to massage them. She said that after she received a manicure, he held her hand and stated "nice colour" in reference to her nail polish. On another occasion, she testified that he said, "Those are nice pants", and then proceeded to stroke her upper leg. Each time, she testified that she told him that he was "too touchy" and pulled away. From time to time, he would respond that, "I'm European, and we're touchy people", or he would simply walk away and not acknowledge her rebuff at all.

22Ms. Baylis-Flannery said that the respondent would talk about his former employee, a young black woman named Malina, who worked as a stripper, and he often described going to a strip club in Detroit to watch her dance. She testified that he liked to imitate how Malina danced while stripping, and described her use of a pole during her performance.

23The references to Malina were particularly uncomfortable for Ms. Baylis-Flannery, because Malina was the wife of Ms. Vasilodimitrakis's brother Roger, hence Malina was her cousin's wife. Ms. Baylis-Flannery testified that she would roll her eyes, walk away, tell him that she did not want to hear it or that she did not care. She said, "I didn't like hearing about it because they are like family, but he didn't care".

24She testified that he often volunteered to her how much he "liked being with young black girls", how he had had a black girlfriend, and how he liked to pick up black women in the United States. However, he expressed anger to her about a black woman he had been seeing who only wanted his money. He often referred to "clubs" during these monologues. He told Ms. Baylis-Flannery that he enjoyed it because, "I see all the young black girls standing out there in their clothes". The respondent attributed his preference for black women to Ms. Baylis-Flannery as being based on: "their shapes", "your big butts", "your lips", and added, "the way you're shaped, you move differently".

25Ms. Baylis-Flannery testified that the respondent had insisted that she read "African documentary books" and "books about slavery" at work, and left them on her desk. He would routinely point out photographs in those books of black women living in Africa. He would comment to Ms. Baylis-Flannery that they were not wearing any clothes, or he would point to their breasts and say, "Look how they are hanging". She said that one book had photographs of a whole tribe, and he commented that they were "naked". She testified that he pointed to a black African man who was naked, and said, "black men are bigger". She repeatedly told the respondent that, "I was not interested in it", but he insisted, and said, "You read it, you read it!"

26Ms. Baylis-Flannery testified that she was very upset by all of these comments and photographs of African tribes-people that she saw in the book left open on her desk by the respondent. She said, "Why? I never gave him any reason. I never said that I was interested in African history". The respondent told her that he was interested in Africa because he had lived there as a young boy, and that he "ran around naked all the time" when he was there.

27Ms. Baylis-Flannery testified that on November 22, 1999, she was working at her reception desk when the respondent straddled her chair and put his legs over her legs. She said that she stood up and said, "What are you doing?" She started crying in front of him. He simply stood up, started humming, and walked back to his office down the hall.

28She testified that this incident made her "very uncomfortable". She said that, "He violated my personal space. He knew and saw I was upset and walked away like it was nothing".

29Ms. Baylis-Flannery testified that she had recently married, her wedding having taken place on November 6, 1999, and that she was too upset to discuss the straddling incident with her husband. She said that she "called in sick" the next day.

30Ms. Baylis-Flannery testified that the respondent told her, on or about December 14, 1999, that he was no longer having sexual relations with his spouse, because she was ill. During another conversation, which she believes occurred on December 17, 1999, he told her that his wife did not like being touched, and that she had not touched him in months. She testified that she advised the respondent to talk to his wife about it, and walked away. Later that day, he asked her if she liked Mexican food and then invited her to go with him to Detroit to have "dinner in Mexican Village". She testified that she said no, and left it at that.

31She testified that he asked her out to dinner a second time, on or about January 18, 2000. When he did so, she retorted, "Why don't you ask my husband?" She said the respondent "just laughed".

32Ms. Baylis-Flannery testified that when she told the respondent that she needed to be out of the office one day to go to the doctor [sic]. He asked her the name of her doctor, and then told her that his "wife went to the same gynaecologist".

Neckline-Tracing Incident

33She testified that on one occasion, she wore a black skirt and v-neck blouse to work. The respondent used his index finger to trace the v-line down her neck and pushed it down lower than the blouse fell. She testified that she pushed his hand away, and told him that he was "too touchy". He replied, "I'm European". She responded by saying that she was not a touchy person, and did not like people touching her. He reiterated that he was "European".

34Ms. Baylis-Flannery indicated that the respondent would regularly initiate conversations about the women he was dating, and provided her with unwanted details.

35She testified that during one conversation, the respondent asked her if she would date an older man his age. She said that he also asked her if she had ever been with an older man his age. She replied that it was "none of his business". He also alluded to her relationship with one of his patients: he was a former boyfriend of Ms. Baylis-Flannery.

36Ms. Baylis-Flannery testified that the respondent had asked her a number of inappropriate questions concerning her husband and her marriage over a prolonged period of time. Specifically, he asked her if she and her husband had sex, and if so, how often and how. She responded by saying that "Yes", she and her husband did have sex, but that as for his other enquiries, she said, "That's my personal life and none of your business".

37She said that she and her husband are now separated. She testified that her husband was black of mixed race, and that he has a light complexion. She had not discussed her husband's race with the respondent. She testified that her husband had been by her office at least once, in late November 1999. Ms. Baylis-Flannery assumed the respondent was of the belief that he was of Italian descent, because he asked her "If there was a difference between blacks, Whites and Italian men".

Sex Website Incidents: "She Looks Just Like You!"

38Ms. Baylis-Flannery testified that on or about December 2, 1999, the respondent asked her to assist him with the deletion of some computer "favourite" websites, and then showed her an online escort service. She said that he showed her a picture of a young, black, female escort, who was wearing what she described as a "sheer white nightie", and said, "She looks just like you!" Then he added, "Look at what she's wearing, do you have a nightie like that? Do you wear things like that?" She replied, "I don't want to see stuff like that" and stood up and left.

39She testified that later on that same day, she said to him, "Walter, you know that I'm a Christian and into the Church and I don't like seeing stuff like that". She said that he replied, "Oh, you people". He then made a gesture and she felt that "he blew it off, basically".

40She testified that, on or about December 3, 1999, he tried again to make her look at some other computerized sex website. Again, she was upset. She testified that she said, "I told you I don't like seeing stuff like that". She testified, that, "I got up and left and went into the other room". Ms. Baylis-Flannery referred to her calendar to recall the dates of the computerized sex website incidents, which is entered as Exhibit 3.

Disrobing Incidents

41Ms. Baylis-Flannery testified that on or about December 9, 1999, she had gone into the respondent's office because he had told her, "After you do the towels, come in and get my jacket". As she was walking towards the respondent, he took off his shirt in front of her, which left him uncovered above the waist. He threw the shirt on a pile of laundry in front of her hands, and walked away.

42She testified that the respondent took off his shirt in front of her on a second occasion, on or about February 8, 2000. She said that he "was just standing there, he didn't turn around, he just stared at me". He was naked from the waist up. At the time of this incident, she told him, "I don't want to see this" and left.

43Ms. Baylis-Flannery testified that on or about December 21, 1999, the respondent asked her what her husband knew of the situation. He said, "Does Sean want to come here and fight me now?" She replied, "What do you think?" She testified that, "He knew he was doing something wrong for him to ask me that".

44Ms. Baylis-Flannery testified that she became anxious about the upcoming office Christmas party, because the respondent had asked her to plan all of it, and she was afraid to be alone with him. She testified that she expected her husband, the cleaning staff person, Kristen Usher and her boyfriend, the respondent and his three children to attend. When some of the invitees indicated that they might not be able to attend, she begged them to come because "I didn't want to be there with him by myself". All the invitees, except for Ms. Usher's boyfriend, attended. However, the other guests only stayed for about thirty minutes. She testified that Ms. Usher did not like the respondent. He had become very aggressive with Ms. Usher's patients and had told her to stop using the photocopier.

45Ms. Baylis-Flannery testified that her stress level had been rising throughout the fall of 1999. By late December 1999, she was "really stressed out". She had been crying at home a great deal, and found herself "snapping" at her husband. She frequently skipped meals and began to avoid food. She said it "was a bad month for me". She began losing hours at work, because she "skipped days — I couldn't get up to go to work".

First Formal Rejection of Unwelcome Conduct: "Crossing a Line"

46Ms. Baylis-Flannery testified that she had spoken to the respondent about two matters on December 29, 1999. First, she asked the respondent when she would be receiving her scheduled raise. He denied ever promising her a raise on her interview and refused to give her one. Secondly, she told the respondent that he was "really touchy" and that "I didn't like it". She added that he was "crossing a line" and that "I didn't like the conversations — they were too graphic, and that I didn't care to hear most of it". He replied, "So, you're telling me you feel uncomfortable when I touched you. I'm just European, that's how we are". She said, "Well, it's disrespectful". Rather than speak to her or apologize, he "huffed and went into his office".

47Ms. Baylis-Flannery testified that after the conversation of December 29, 1999, the respondent barely spoke to her in the office. When he did, he made her read the fine print on credit card application forms, and explain it to him, or he told her she was on the telephone too much. He demanded that she scrub away a spot on the carpet that was barely visible to her. He was very abrupt with her when they spoke.

48She testified that she believes the respondent failed to keep his word about the raise because she had made it clear throughout the fall that "his gestures weren't welcome", and added that she "wouldn't let him touch her".

Pornographic Magazine Incidents

49Ms. Baylis-Flannery testified that on or about January 3, 2000, after a male patient left the office, the respondent called her in and said, "Look at what this guy left here". The patient had left a French-language pornographic magazine behind. The respondent said, "Can you believe this guy?" Ms. Baylis-Flannery said that the respondent sat in the office reading it. She testified that on or about January 7, 2000, the same thing happened with the same patient on a second occasion. The respondent called her and said, "Look at what this guy left again". She replied, "I told you I don't want to see this stuff. I don't like it". The respondent turned from her, and walked away reading it. She felt that he had done this on purpose to see what her response would be. She felt "so stressed out by the job" and that the respondent's behaviour was "really disrespectful".

Kissing Incident

50Ms. Baylis-Flannery testified that on or about January 14, 2000, the respondent "grabbed my face to kiss me". She was at her reception desk, and she could hear him singing in the back of the office. When she turned to look, he leaned in and tried to kiss her. She turned to move, and "he got the side of my face". She testified that she was "very upset and crying", and said, "What are you doing?" She said that in response, "he walked back to his office like nothing" and did not say a word to her.

51She testified that after this ordeal, she was "crying and emotional all day", and had to take the next day off work. She said that she called in sick on January 6 and January 19, 2000, because of the stress she felt. She said that she could not eat or sleep any longer, because the stress of her job had become too great. The respondent complained to her about her absences and said, "You're barely working here anymore".

Three Unexpected Visits to Her Home

52Ms. Baylis-Flannery testified that the respondent had unexpectedly and without invitation stopped by her home on three different occasions. She said that she felt "very uncomfortable", because she was by herself on two of those occasions. On one incident, she answered her door, but stood beside it, and when the respondent tried to start a conversation with her, she said, "I have things to do". The third time it occurred, she and her sister went upstairs and she did not answer the door.

53Ms. Baylis-Flannery testified that by this time, she "hated my job with a passion". On her way to work in the morning, she would sit in her car and pray for the strength to make it through the day without it being "such a load on me". She felt that she could not resign because she needed the income. She testified that she had become withdrawn, and had stopped talking to people, even the patients. She said that she was quiet around her home. She still could not eat, and now had stomach pains regularly. She began vomiting and had thought that she might have an ulcer. She testified that she could not sleep. Her acne worsened. She said, "I cried a lot" and added, "I was getting so depressed". She testified that when her husband went on the midnight shift, she became "paranoid" and was afraid that the respondent would come by her home again.

54She called her mother and Ms. Vasilodimitrakis for advice. She called her brother-in-law who is a police officer, and asked what she should do. He advised her to start documenting these incidents in a calendar, to call the Human Rights Commission, to try to tape her conversations with the respondent, and to slap him. She also spoke to Ms. Usher about the situation because she was afraid to be left alone in the office with the respondent. She said Ms. Usher was "very supportive".

Second Formal Rejection: She Told Him to Stop

55Ms. Baylis-Flannery testified that she had a conversation with the respondent on or about January 21, 2000, which she noted in her calendar as "talked to Walter to stop". During this conversation, she told him that, "some of the things you do around the office really need to stop", and explained that he needed to cease his "touching, and don't disrespect my personal space". She said that he responded by saying, "Why do you people get like that?" He became abrupt and left.

56After this conversation, she said that at first, the "touching . . . died down". However, shortly afterwards, he began to harass her again. He brushed up against her, breathed on her, and became angry with her if patients arrived at the office without appointments. The sexual and racial jokes continued during this period of time. Ms. Baylis-Flannery recalls him joking about a patient who was an overweight woman. He had commented, "She's bigger — how can she have sex?"

57She testified that on February 15, 2000, he asked her what she and her husband did for Valentine's Day. She replied, "Nothing much". She said that he asked her again, and said, "Did you have a romantic night?" She replied, "That's my own personal business". That ended this conversation.

58Ms. Baylis-Flannery decided to try to tape-record these events. She said that on or about February 24, 2000, she put a tape-recorder in her sleeve, but nothing significant was said that day. She testified that she gave this tape to the complaints Committee of the College of Physiotherapists in Ontario for their investigation, but in their Decision and Reasons, dated September 12, 2000, entered as Exhibit 14, they found that it was "of extremely poor audio quality" and "most of the conversation was inaudible".

Her Formal Complaints Against the Respondent

59She testified that her depression had become "overwhelming" and that she "wanted it to stop". She testified that on or about February 25, 2000, she called a lawyer whose name she found in the telephone book, and the Sexual Assault Trauma Centre. She said that she also called the Human Rights Commission.

60Ms. Baylis-Flannery testified that shortly after she called the Crisis Centre, she wrote an undated letter to the College of Physiotherapists "asking them for help", which was entered as Exhibit 5. The letter is reproduced in full as follows:

My name is Racheal Dawn Baylis-Flannery, I am a 24 year old recently married secretary, for a Physiotherapy office in Amherstburg, Ontario. I am writing because I am in a situation in which I don't know what to do. I started this job at the end of October (my cousin worked here before I did) at first the job was everything I was looking for, it was truly a great job. The work was something I liked doing, the patients are extremely friendly, and the two Doctors got along with me. (one doctor is a Physiotherapist and the other a Massage Therapist) The Physiotherapist always liked talking to me, it seemed like we were becoming very good friends. But after a month he started to get touchy with me, always touching me. At first I laughed and told him I would tell my husband, it seemed like nothing at first, I just thought that was the type of person he was, I didn't want to jump to any conclusion. Then he started asking sexual questions about me and my husbands (if we have sex a lot or if it was good sex) he would ask if I would like to be with an older man. At this point I stopped communicating with him, he would talk and I would not say a word, just shake my head, if I did speak to him I would tell him that he is crazy. On one occasion he asked me if his gestures made me feel uncomfortable, I said "Yes, I think there's a limit to things" (I was trying to be nice about it because I didn't want to jeopardize my job). Well every thing continue, but it seemed like it was getting worse, he would ask to come to my house, he even stopped by my home on two occasions, He constantly talks about his wife, how she hasn't had sex with her in six months because he thought she was sick, (I would tell him I didn't want to know about that) I really didn't know how to handle the situation, and I couldn't afford to quit, it just seemed like he wasn't understanding that he was making me feel totally uncomfortable even though I was telling him.

December seemed to be unbearable so I went to my cousin to talk to her, she started telling me that he (the Physiotherapist) was doing this to her for the 2 years that she worked here. Her husband once came in and talked to him (the Physiotherapist) because he had put his hand in her dress, she said he acted like it was a joke or something. I asked her why she didn't tell me about these things before I started, she just didn't know how to explain it to me about how he is, she figured he was only like that with her because she's shy. Work started to become stressful and he kept pushing me, commenting about my body, and how blacks (I'm mixed decent) bodies are very nice, he would give me historical books full of African women naked and would point out how the breast looked, then he would go through a French porno magazine in front of me, one time I was sitting at my chair and he straddled me, I immediately pushed away and walked away.

A few day before Christmas holiday he came running from the back office grabbed my face to kiss me, I quickly turned my head and he kissed my cheek. It was so hard to come back to work after New Years. But when I came back to work that morning I made it a point to settle this, the next morning things didn't change so I told him forcefully not to touch me. After that his attitude with me was different, he started treating me so horrible. I really didn't know what to do. I would sit at my desk and pray that God would give me another job, and help me through this. I stopped wearing makeup here, my hair is always pulled back and never, never dress up and come to work. I didn't want to get his attention, I feared this place.

I finally called Sexual Assault Treatment Center and asked for information, they gave me the number to an information center for sexual harassment, I spoke to a lady there and she told me to document things and call the Doctors Board. I didn't call, I didn't want to start anything and I figured I would quickly find another job. But it's not that easy. I've been looking (hard) every week I faxed about 40 resumes out, but nothing. By the middle of January I asked him for my raise and he said no (I think he said this because he's mad) He's been complaining about my work, being so mean to me, hang over my shoulder, Its like were enemies. I talked to the Massage Therapist about this but she did nothing to help.

Its February now and every morning I leave the house to go to work 10 minutes early. I sit in the car for 5 minutes and pray that God give me the strength to make it through the day. It feels like I'm on edge of going insane, I don't talk to my husband about this no longer because I fear what he may do. I'm so stressed out that I have migraine headaches and its effecting my health. I plead to you to understand how I'm feeling, I don't want to start trouble with him, I fear that if I do he'll push me even harder. I would quit this job but me and my husband are hardly making it now. I beg of you to advise me on what to do.

61Ms. Baylis-Flannery testified that she received a letter from the College of Physiotherapists, dated March 21, 2000, acknowledging her correspondence and advising her of the steps required in a formal complaint to the College. She received a similar letter from the Ontario Physiotherapy Association directing her to the College, also dated March 21, 2000. They were entered as Exhibit 12.

62Ms. Baylis-Flannery testified that by February 2000, she had become "really emotional", and added that, "I didn't know how to deal with it". She had spoken to Ms. Usher, the Massage Therapist, privately, and she was hoping that she would talk to him on her behalf, but as far as she knew, this did not occur. However, she testified that Ms. Usher was spending significantly more time in the office, "which really helped keep Walter away from me". Ms. Baylis-Flannery said that she began to wear bulky sweaters to work, ceased wearing make-up, pulled her hair back, and stopped using nail-polish, because "I didn't want him to look at me". She had frequent migraine headaches [and] described it as a "tough period".

Third Formal Rejection: Her Handwritten Letter to the Respondent

63Ms. Baylis-Flannery decided to write the respondent a letter, which was entered as Exhibit 6. She prepared her handwritten letter, and asked Ms. Usher to read it before she gave it to the respondent, which Ms. Usher did. Ms. Baylis-Flannery testified that, on March 3, 2000, she left the letter in an envelope marked with his name on the front of it, on top of a stand in the respondent's office where he kept his current correspondence and paperwork. This letter to the respondent, dated March 3, 2000, is reproduced below verbatim:

I am writing to let you know for the last time, starting in the middle of November, you have been totally disrespecting me in every way possible. I have told you time and time again to refrain from touching me in any way, indecent or disrespectful way. You have crossed a line by your actions, ex; straddling my chair at my desk [illegible]

· Rubbing my legs, arms and back

· Talking about your sex life (past and present)

· Talking about me and my husbands personal affairs

· And visiting my home

You have crossed a line and I feel you have turned a deaf ear to any time I tell you to stop or how uncomfortable I feel. It seems each time I express to you the way you make me feel I am forced to endure your [blank space] attitude, which makes my job harder. You need to understand you make my workplace stressful and very emotional. I am not a mean person but you have placed such an enormous amount of pressure on me. I tried to be nice to you but I understand that your type of people cannot be treated nicely.

So I am talking to you. If you ever make me feel uncomfortable or if you come to me in any disrespectful way I will take legal action. I will report you to the Labour Board and press charges. Its too bad your ways had to turn things in this direction. I will (if provoked) write a petition signed by three of your passed [sic] employees stating everything you have done. I should also warn you that if in any way your treatment of my work is altered because of this letter I will contact the Labour Board. I have also been taping you to back up my Claim.

In no way will I change because of this letter. I am a nice friendly person and I will continue to be that way. I just wish you would see how your actions are effecting me.

March 3/00

Racheal Baylis-Flannery

64She testified that after she left this letter in his office, the respondent was "in a bad mood" and that "he wouldn't talk to me". She said that he began pulling out his own files, and trying to do her job. She said that he asked her to call patients too often to demand payment, and when she questioned it, he "snapped" and said, "Just do it". She testified that he also insisted that she scrub a spot out of the office carpet that was barely visible, even though they had a cleaning staff person to perform such tasks. He began to question her if patients came by the office without an appointment, which he had not raised with her before this time.

65Ms. Baylis-Flannery said that in March 2000, the respondent was "mad at me", but "I was not even sure why". The respondent told Ms. Baylis-Flannery not to talk to Ms. Usher, and told her that he did not like Ms. Usher. He described her as "a rich kid" and as "snobby". She said that the respondent was "really distancing himself", and was "grumpy". She stated that he had become short-tempered at the office and with his patients. She saw him consuming alcohol at work, and had observed that he "always had a bottle of wine in the freezer".

Her Termination

66Ms. Baylis-Flannery testified that on March 17, 2000, the respondent called her into his office and handed her a letter of termination, which was entered as Exhibit 7. She said that he told her that he was going to "let you go because you're not what we're looking for". He added that, "You don't look too happy here". She started crying and replied, "What do you expect? Since the end of November, you've been touching me too much and harassing me". He responded, "I knew you'd do this. I don't even want to argue about this. You can go". Her Record of Employment, entered as Exhibit 8, also indicates that she was dismissed.

Criminal Charge of Sexual Assault and Conviction for Common Assault

67Ms. Baylis-Flannery testified that she went to the police station on March 17, 2000, and filed a report. She heard from a police officer named Maggie LeBlanc about one week later. She testified that she received a copy of a subpoena to witness, entered as Exhibit 9, in the mail a couple of weeks later. The subpoena to witness states that Walter L. DeWilde was charged with "sexual assault contrary to section 271 of the Criminal Code". The charge and corresponding probation order against the respondent were entered as Exhibit 10. The charge specified a "sexual assault on Racheal D. Baylis-Flannery contrary to section 271 of the Criminal Code". The probation order, dated February 16, 2001, stated that the respondent was found "NOT GUILTY to sexual assault CC: 271 BUT GUILTY to the offence of common assault CC: 266". The probation order, imposed on the respondent for a period of twelve months, also required the respondent not to associate or hold any communication directly or indirectly with Ms. Baylis-Flannery, and not to attend at her residential address or any subsequent residence of hers.

68Counsel for the Commission submitted that the respondent had "pleaded down" the charge, and entered the transcript from the "Proceedings at Guilty Plea" before Justice Rawlins, on February 16, 2001, at Windsor, as Exhibit 11. Ms. Baylis-Flannery testified that although she was prepared to go to court and testify in that proceeding, she was never called. She said she was disappointed with this outcome.

Decision from the College of Physiotherapists

69Ms. Baylis-Flannery testified that she was upset and disappointed when she received the Decision and Reasons of the Complaints Committee of the College of Physiotherapists of Ontario, dated September 12, 2000, and the College's Formal Caution, dated January 11, 2001, both entered as Exhibit 14. The College focussed primarily on the issue of patient care in the belief that this issue is its primary mandate. It urged the respondent to attend a workshop entitled "Maintaining Professional Boundaries" and expressed concern about his consumption of alcohol during the course of a day when he is treating patients. The College's decision did state that it would monitor the outcome of the criminal and human rights proceedings against him, and that if a conviction or formal findings resulted from those proceedings, the matter would be reported to the Executive Committee of the College and further action might be taken.

Her Medical Treatment by Dr. Jezdic

70Ms. Baylis-Flannery testified that she sought medical treatment at the Amherstburg Medical Clinic, where three different physicians took turns seeing patients. She testified that on March 24, 2000, Dr. Jezdic examined her, and gave her prescriptions for Zantac, Immovane, and ordered a test on her stomach. These prescriptions were entered as Exhibit 18. She testified that Dr. Jezdic diagnosed her stomach problems as "reflux", which she said is a stress-related ailment.

Details of Her Employment

71Ms. Baylis-Flannery testified that she began employment with the respondent in late October 1999. Her Record of Employment, entered as Exhibit 8, indicates that she was employed at Tri Community Physiotherapy from October 25, 1999, until March 17, 2000, and worked 612.2 hours.

72Ms. Baylis-Flannery said that she regularly worked 35.25 hours per week, and was paid $8 per hour, throughout her employment with the respondent. A photocopy of a pay-stub that established these figures was entered as Exhibit 19.

73Ms. Baylis-Flannery's T4 — Statement of Remuneration Paid for the 1999 and 2000 calendar years when she worked for the respondent were entered as Exhibit 21. Ms. Baylis-Flannery confirmed that they were correct, and that she did earn $2,077 in 1999 and $2,778.20 in 2000.

74Ms. Baylis-Flannery testified that she began her job search for a new position while she was still employed with the respondent. She said that she searched job banks, and followed up on job leads. She stated that she applied to other positions in the medical field or to "anything that made good money". Her record of other organizations to which she applied was entered as Exhibit "22".

Her Subsequent Employment

75She worked briefly at the Family Chiropractic Wellness Centre, starting in the summer of 2000, where she earned $9 per hour. Her T4 for this position, entered as Exhibit "23" indicates that she earned $1,439.10 there. She testified that she left that position because some of the patients at this new clinic had been patients at the respondent's clinic, and she felt quite uncomfortable, since this was a small community.

76She testified that after she left the Family Chiropractic Wellness Centre, she worked at a factory called Heaton's for approximately six months, starting on October 13, 2000, and ending in March 2001, until it closed down. She earned $9 per hour at Heaton's. Her daughter was born in April 2001, and then she returned to work at a Becker's store in June 2001 where she worked until the end of January 2002, earning $8 per hour. Her T4s for Becker's were entered as Exhibits 24 and 25 respectively.

77Counsel for the Commission said the complainant is seeking special damages for the difference in wages during the period of time between December 29, 1999, when she ought to have received a raise to $12 per hour, to March 17, 2000, being her termination date, and for her loss of income from March 18, 2000, to October 13, 2000, when she began full-time employment at Heaton's.

78When she was asked how these experiences of discrimination, harassment and termination made her feel as a black woman, she responded that she believes the respondent "does not recognize anything that he has done", nor the "emotional turmoil he put me through". She stated that, "My agony was just to humour him", and said that is why she "decided to press it" by going to the Commission, because ". . . he can't do this to people".

Dr. Jezdic's Evidence

79Dr. Jezdic testified that she is a physician with a general practice, and that she worked at the Amherstburg Medical Clinic from 1997 until it closed in 2002. She said that she worked there forty hours per week, and that the doctors rotated shifts. Their patients typically attended without an appointment, although some patients did book appointments.

80Dr. Jezdic reviewed her clinical notes, entered as Exhibit 27, and testified that she first saw Ms. Baylis-Flannery on February 18, 2000. She testified that the first time she saw Ms. Baylis-Flannery regarding this case was on March 24, 2000.

81Dr. Jezdic said that Ms. Baylis-Flannery spoke of her "stress" and "anxiety" related to her work at Tri Community Physiotherapy. Dr. Jezdic recounted from her clinical notes that Ms. Baylis-Flannery had been sexually harassed by her employer, named "Walter". He was a man in his 60s, and married with children.

82Dr. Jezdic said that she asked Ms. Baylis-Flannery about the sexual harassment, and she replied that her clinical notes indicated that her employer had been "grabbing arms and legs", "tried to grab me and kiss my mouth", and stated that he had changed in the office and was naked. Ms. Baylis-Flannery described how her employer tried to straddle her chair, and how that had made her feel uncomfortable.

83Dr. Jezdic reviewed her clinical notes, and said that Ms. Baylis-Flannery began having "a lot of headaches" in December 1999. She added that, in addition to these "tension headaches", she was having "problems with her sleep" and her "mood" had become "quite sensitive" to her environment. Dr. Jezdic's clinical notes also indicated that Ms. Baylis-Flannery had become "sluggish", "paranoid", and was suffering from "nausea and was queasy". Dr. Jezdic said that her clinical notes indicated that Ms. Baylis-Flannery also had "episodes of blood and vomiting when eating".

84Dr. Jezdic was concerned about her vomiting and the blood associated with it, and wondered if she was developing gastritis. She explained that gastritis is an increase in acid production, and that it can lead to ulcers. Dr. Jezdic testified, "with stress, people can develop somatic complaints, and one of them is acid production". She added that, "I examined her abdomen to see if she was developing a gastric ulcer and found some tenderness there — in the upper gastric area".

85Dr. Jezdic also described Ms. Baylis-Flannery's state of mind as "nervous", and said that she took the approach of letting her "ventilate [sic] and I supported her". She stated that this "allows the patient to get some control over their anxieties". They discussed Ms. Baylis-Flannery's difficulties sleeping, and Dr. Jezdic also prescribed her with a two-week supply of "Immovane", which is a non-addicting sleeping pill: Exhibit 18.

86Dr. Jezdic said that she wanted to investigate the gastric condition, which she felt was the result of stress. She put Ms. Baylis-Flannery on an antacid, called "Zantac", twice per day, to control the stomach acid, entered as Exhibit 18, and ordered a blood test called "H. pylori", which assesses the bacteria associated with ulcers. She also suggested an "Upper GI", in which the patient swallows a barium shake to assess for reflux or developing ulcers. Dr. Jezdic said that although she ordered the "upper GI", entered as Exhibit 18, she did not receive any follow-up report. Ms. Baylis-Flannery said that she could not recall if she had the test or not. Dr. Jezdic said that the Zantac may have been enough to control the symptoms. The H. pylori test was "indeterminent", which Dr. Jezdic explained meant that "her result was not positive or negative", and so she did not treat it with antibiotics. Dr. Jezdic stated that gastritis can present like an ulcer, and that the symptoms are treated the same way, with an antacid.

87Dr. Jezdic testified that Ms. Baylis-Flannery had the "symptoms of stress", coming out as the physical complaints of lack of sleep, stomach acid and depression, because "she kept the stress harnessed inside her". Dr. Jezdic had treated Ms. Baylis-Flannery previously and reviewed her file. Prior to employment at Tri Community Physiotherapy, Dr. Jezdic said that Ms. Baylis-Flannery had no depressive symptoms, and had not been on any medication for her stomach or on any sleeping pills. She testified that her "prior visits were nothing related to this sort of thing".

Stephanie Vasilodimitrakis's Evidence

88Ms. Vasilodimitrakis testified that she was seven months pregnant with her son when she left Tri Community Physiotherapy to become a support worker at Christian Horizons, a group home for the mentally disabled. She had worked at Tri Community Physiotherapy for two years.

89Ms. Vasilodimitrakis testified that she is Ms. Baylis-Flannery's first cousin, and identifies herself as black. She and Ms. Baylis-Flannery spent a great deal of time together when they were younger, but as adults, they had "separate lives", because they were married and Ms. Vasilodimitrakis had a family.

90She met the respondent when she worked as a salesperson at a local Radio Shack store. She rang up his sale, and he said he was looking for a secretary to work in his office and asked if she would be interested. She gave him her résumé, and he hired her during her interview. She said that he sent her to observe another physiotherapist's practice in a nearby town in order to familiarize her with Workers' Compensation cases, motor vehicle cases, and how to do patient assessments.

91Ms. Vasilodimitrakis began working for the respondent in January 1998 for $8 per hour, and received three to four raises during her employment to $10 per hour, by the time she left in November 1999.

92She testified that she stayed in her position for two years because she liked the work, and was interested in the medical field as a career. The respondent's behaviour was the reason for her resignation. The respondent seemed to know more about her life than what she had told him. For example, he knew of events at her church which she had not discussed with him.

93She described the respondent as being "very touchy feely", and that he was too open with his "family business". She testified that within the first two weeks of working there, she knew that he and his wife did not have sex. He also told her that his "wife had cheated on him with several different black guys". This information was embarrassing to Ms. Vasilodimitrakis, because they were her relatives.

94She said that the respondent made a number of racial remarks to her. When he saw black persons, he said to her, "Look at those black guys, jumping around like monkeys". He recounted his childhood in Africa, including the young black child to whom the respondent would say, "Go home little nigger". He sang Ms. Vasilodimitrakis a song, "about a little black boy who sat in the rain and got washed White". She was struck by his approach to all of this, stating, "Walter thought this was conversational and I wanted to hear him talk about that".

95She testified that the respondent showed her a book about blacks in Africa, which emphasized their profiles, and the outline of their lips and noses. She said this was "degrading to me".

96She said that on another occasion, there were some flies in the office, and when she said, "I gotta get these flies out of here", he responded by saying, "You should be used to it. In Africa, they let the flies fly over their faces". She replied, "They were probably sick. They don't feel good, that's why they have flies on their faces".

97She testified that on one occasion, the respondent asked her to locate a pornographic website on the computer for him, and she complied. She said that he was frequently on pornographic websites in the morning, and that he said that he "wanted to see lesbians". He would call her over and tell her to look.

98She testified that Malina was her sister-in-law. She did not know that Malina also worked as a stripper when she helped her gain employment at Tri Community Physiotherapy. On one occasion, the respondent dropped a purple napkin on the floor with the name of an American strip club on it, and said, "Guess where I was? I went to see Malina strip but she wouldn't come out".

99She testified that he once rubbed her shoulders, and another time, grabbed her knees while she was sitting in the back room having her lunch. He tried to get her to sit on his lap, and grabbed her to pull her in towards him. He once touched her skin where her v-neck shirt fell, and said, "You have a white line right there". On another occasion, she walked to her desk one day and her garment must have been unzipped. He stuck his finger through her garment right onto her underwear and said, "Your zipper is down". She began crying and told her husband George what happened. Her husband confronted the respondent, and his sexualized behaviour towards her ceased.

100She testified that Ms. Baylis-Flannery had approached her about working at Tri Community Physiotherapy, and that she had tried to put her off without explaining why. She said that Ms. Baylis-Flannery persisted, and that the respondent hired her. She testified that she never alerted Ms. Baylis-Flannery to the situation in the office, and in fact, had lied to her and told her that she did not think the respondent would like her.

101She testified that later on, Ms. Baylis-Flannery confronted her and said, "Stephanie, what did you allow him to do? How far did you let him go?" She said that Ms. Baylis-Flannery's husband also confronted her, and said, "How could you let her work there?" She replied, "I didn't want her to work there".

102Her evidence was that she kept the position for two years until she could find another position to go to because her husband was not working at the time, having returned to school, and she needed to have a job. When she resigned, she was pregnant.

103Ms. Vasilodimitrakis said that when she saw Ms. Baylis-Flannery from time to time, she observed changes in her, who was also "happy there at first". She said that both of them wanted to work in the medical field. She said that she could hear the stress in her voice when they were on the telephone, even though Ms. Baylis-Flannery "didn't go into detail", even after she had been terminated. She said that Ms. Baylis-Flannery "lost a lot of weight" and that it was stressful on her marriage. She added that working for the respondent had been stressful on her marriage too, and that she used to go home and argue with her husband. She said, "It was horrible. He does not know the stress that he caused me". When asked, she stated that she has not filed a complaint with the Commission.

Kristen Whatmore's Evidence

104Ms. Whatmore testified that she is a Registered Massage Therapist, and that she worked out of Walter DeWilde's office in 1999. At that time, her name was Kristen Usher.

105She testified that her relationship with the respondent was "strictly business". Initially, the respondent did not want to charge her any rent, although he did not say why.

106Ms. Whatmore stated that during the first two or three months that she worked in the respondent's office, Stephanie was the secretary. She recalled Stephanie being pregnant and that she left to take a different position at Christian Horizons. After Stephanie left, she said that the respondent started looking for another secretary to replace her. She said that he received many applications, but that he did not conduct any interviews.

107On one occasion, Ms. Whatmore recalled that the respondent had "résumés scattered across his desk" for the secretarial position. She glanced at the résumés, noting that many of the applicants had college educations and secretarial backgrounds, and said to the respondent, "Wow, these people have really good qualifications". She said that he "snapped at me" and said, "It's none of your business. I can conduct my hiring any way that I want". When she realized that he had hired Stephanie's cousin, she found it "strange" that he would not call anyone for an interview when there were some well-qualified applicants, and thought that he preferred "young black girls who could be manipulated".

108She added that the respondent had become "kind of edgy in the office first, and then the résumé thing". At the time, she was unaware that Stephanie's husband had been in the office to speak to the respondent about his behaviour. Shortly thereafter, the respondent suddenly decided to charge Ms. Whatmore rent.

109Ms. Whatmore testified that she regularly saw wine in the office refrigerator, and had seen the respondent drunk one night sitting in the office in the dark when she returned to the office late to pick up something. On another occasion, she saw the respondent lose his temper and charge his office door "like a bull" because he had locked himself out of his inner office.

110Ms. Whatmore testified that she frequently heard the respondent tell "sexual jokes", which involved "women-bashing" and "dirty jokes". She also heard him tell jokes about "blacks or Africans". She said that his jokes were either "degrading or dirty", and noted that he did not tell "any knock-knock jokes".

111She said that she ran her appointments for her patients on an hourly basis, so she met her patients at the reception area and then walked them back to her massage room. There was little transitional time in the reception area, and so she was initially unaware of the situation between Ms. Baylis-Flannery and the respondent, until Ms. Baylis-Flannery spoke to her privately.

112Ms. Whatmore testified that Ms. Baylis-Flannery "asked me very quietly if Walter had ever made me feel uncomfortable, touched me, insinuated anything, or made me uncomfortable". She said that Ms. Baylis-Flannery seemed "very quiet and passive" as well as "frightened" when she confided in her that she had asked the respondent "to stop a couple of times", but that "he wasn't listening", and that she did not want to go to work anymore. Ms. Baylis-Flannery also told Ms. Whatmore that the respondent thought she was a "bitch" and had told her not to have any contact with her and not to talk to her. Ms. Whatmore was surprised by all of this, and "started watching more closely" the situation within the office.

113Ms. Baylis-Flannery also told Ms. Whatmore that she was considering giving the respondent a letter outlining how she felt, because she had told him enough times and "felt that she needed to take it a step further". Ms. Whatmore told her that she agreed that giving him a letter was a "good idea".

114After this conversation, Ms. Whatmore observed the situation more closely. She testified that she saw the respondent "brush up" against Ms. Baylis-Flannery, "rub her arm", and that he deliberately leaned over her reception desk, when he could have easily stepped around it to hand her papers. Ms. Whatmore said that the respondent "came over top of her as well as from behind — over her back" when "she's just sitting at her desk, doing her thing at her desk when this happened". She said that when the respondent leaned over Ms. Baylis-Flannery, she looked "angry, disgusted and frustrated", and would push herself back away from him. It was clear to Ms. Whatmore that Ms. Baylis-Flannery "tried to get away" each time it happened. She also saw the respondent "reach across Racheal to get things, with his hips on her shoulder, right over top of her, and she'd push back looking disgusted".

115Ms. Whatmore testified that Ms. Baylis-Flannery showed her a handwritten letter to the respondent, which she read at the time, and identified at the hearing as Exhibit 6. She said, "I read the letter and thought it was good. I told her I was proud of her and that maybe he'd take her seriously after that". She watched Ms. Baylis-Flannery walk to the back of the office and put the letter in his office, on the music stand where he kept his scheduling book and other correspondence.

116Ms. Whatmore testified that either later that day or the next day, the respondent asked to meet her at lunch and told her that she had to find another place to work. She replied that he could not do that because she had just paid her month's rent. He responded, "Too bad". When she went to work the next day, all the locks had been changed. At no time prior to this incident had the respondent indicated to Ms. Whatmore that she needed to find different office space.

117Ms. Whatmore believes that the respondent locked her out of the office because he knew that she was aware of the letter that Ms. Baylis-Flannery had left for him. Ms. Baylis-Flannery called her at home the same day to say that she had been fired.

118Ms. Whatmore testified that after she left the respondent's office, she continued to treat a number of her patients elsewhere, some of whom had been patients of the respondent. She said that a few patients told her that they felt "uncomfortable" around the respondent, because he had touched them inappropriately, or he had walked in before they were finished changing. She said that, "Everybody who talks about that clinic has something to say about it" and added that, "I'm concerned because he's a healthcare professional".

FINDINGS OF FACT AND LAW

119After consideration of the testimony of all the witnesses and the documentary evidence put before it, the Tribunal is satisfied that the Commission and the complainant have made out a prima facie case on all the grounds claimed.

Summary of Findings

120The following is a summary of the findings made:

(1) The complainant's rights to equal treatment with respect to employment without discrimination based on race and sex was infringed, contrary to s. 5(1) of the Code;

(2) The complainant was subjected to ongoing sexual solicitation, racial harassment and sexual harassment in the workplace, of both a verbal and physical nature, that included unwanted touching, rubbing, kissing, straddling, leaning in too closely, common assault, unwanted displays of explicit or pornographic materials in both printed and electronic form, in violation of s. 5(2) and s. 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 s. 7(3)(a) of the Code;

(4) The respondent's refusal to give her a scheduled raise, despite no negative performance reviews, was reprisal for her clear rejection of his sexual solicitations, contrary to s. 7(3)(b) of the Code;

(5) Her termination by the respondent was reprisal for her letter to him that asserted her legal rights by threatening to report him if he continued to harass her, and thus constitutes reprisal within the meaning of s. 8 of the Code.

121Below, the Tribunal expands on the reasons for these findings of fact and law.

The Infringement of Her Right to Equal Treatment without Discrimination

122The Tribunal finds that Ms. Baylis-Flannery's rights to equal treatment with respect to employment without discrimination based on sex and on race were infringed by the respondent.

123The Tribunal finds that the respondent's ongoing inferences and questions concerning Ms. Baylis-Flannery's past sexual relationships, whether that be with a former boyfriend or enquiries about older men; his questions about her marriage and her sexual relationship with her husband; his question whether or not she thought there was a "difference between black, White and Italian men"; and his comment that her medical appointment was with the same gynaecologist as his spouse attended, were illustrations of this breach of the Code.

124Similarly, the Tribunal finds that the respondent's insistence on advising her of the state of his marriage and his routine conversations about his relationships with other women; his stated preference for "young black girls" to her; his description of his former black girlfriend to her; his descriptions and imitations to her of a young black stripper named Malina; and his repeated references to the physical characteristics of blacks and Africans generally and of black women in particular to her, and his insistence that she read the "African documentary books" he left on her desk, were further illustrations of this breach of the Code.

125The Tribunal finds that not only were these remarks and questions inappropriate, they were discriminatory, based on both race and sex. As a black woman, Ms. Baylis-Flannery was particularly sensitive to these comments from her employer.

Poisoned Workplace

126The Tribunal is persuaded that the Tri Community Physiotherapy Clinic was a poisoned workplace, contrary to the spirit of s. 5(1) of the Code. The Tribunal refers to the decision in Moffatt v. Kinark Child and Family Services (No. 4)(1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.), for the proposition that s. 5(1) offers protection where the discrimination on the basis of an enumerated ground has created a poisoned workplace.

127Ms. Baylis-Flannery's testimony in this regard was corroborated by the testimony of Ms. Whatmore and Ms. Vasilodimitrakis. The documentary evidence provided to the Tribunal, such as the letters of complaint to the College of Physiotherapists, the Ontario Physiotherapy Association and her warning letter to the respondent, also corroborate her testimony. In particular, Ms. Whatmore was present when she heard the respondent repeatedly make sexual and racial jokes in the company of Ms. Baylis-Flannery, and observed his physically intrusive behaviour toward her on several different occasions, despite the fact that Ms. Whatmore testified that she spent most of her time in the office treating her own patients.

128The Tribunal accepts the evidence of Ms. Vasilodimitrakis that she was also sexually and racially discriminated against by the respondent, prior to Ms. Baylis-Flannery's employment at Tri Community Physiotherapy. The respondent made a number of racial slurs to her about blacks and Africans generally, including an analogy to "monkeys", a description of black Africans as being accustomed to being covered with insects, and the use of the word "nigger". The Tribunal finds that these comments were deliberately made to degrade her based on her race. He also repeatedly touched her, grabbed her, rubbed up against her, rubbed her shoulders and showed her pornography. Ms. Vasilodimitrakis said that he touched the outline of her clothing and her skin, and he put his finger through her garment to touch her underwear, on two different occasions, until her husband confronted him.

129Ms. Vasilodimitrakis further testified that the respondent had discussed both his relationship with her sister-in-law, Malina, who was a black female stripper, and his marriage with her, even though she tried to discourage these conversations. She said that he persisted in telling her about Malina, even though he knew from her that Malina's husband was Ms. Vasilodimitrakis's brother. She said that he had told her that his "wife had cheated on him with several different black guys", and they were her relatives.

130The Tribunal finds that she failed to tell her cousin the real reason why she did not want her to work in that office to be true, since it was clear from her testimony that she did try to dissuade her from working there. Both Ms. Baylis-Flannery and Ms. Vasilodimitrakis testified that they were not particularly close as adults.

131The Tribunal accepts the evidence of Ms. Baylis-Flannery that the respondent deliberately disrobed from the waist up in her presence on two separate occasions after calling her into his office, as set out in § 41 and 42. The Tribunal considers this to be a serious matter in terms of poisoning the workplace, in addition to its evidentiary value within the context of the sexual harassment that occurred.

132Ms. Whatmore testified clearly that she received complaints of sexual harassment by the respondent from Ms. Baylis-Flannery, as well as observing his solicitous and harassing behaviour of her. Ms. Whatmore also testified that she read the letter that Ms. Baylis-Flannery wrote to the respondent to put him on notice that she would not tolerate any more harassment, and encouraged her to do so.

133Ms. Whatmore also testified about the increasingly erratic and irritable nature of the respondent's behaviour in the office, which included the consumption of alcohol at lunch, and charging at an inner office door, "like a bull". Her testimony corroborated Ms. Baylis-Flannery's testimony that the respondent had become increasingly difficult and unpredictable.

134The Tribunal accepts the evidence [of] Ms. Baylis-Flannery that she "hated her job with a passion" because of the discriminatory treatment she received, and that she was afraid to be alone with the respondent in the office. Ms. Whatmore testified that she deliberately spent more time in the office so that Ms. Baylis-Flannery would not have to be left alone with him.

135The Tribunal finds that no workplace should become so poisoned based on race and sex that a colleague needs to guard a fellow employee from further discriminatory acts.

Sexual Solicitation, Racial Harassment and Sexual Harassment

136The Tribunal accepts the evidence of Ms. Baylis-Flannery that the respondent asked her out to dinner on two different occasions, being on or about December 17, 1999, and January 18, 2000. After the second incident, she testified that she said, "Why don't you ask my husband?" The respondent laughed. Similarly, on December 21, 1999, the respondent asked Ms. Baylis-Flannery if her spouse knew of the situation at work and if he was prepared to "fight me now". These comments violated her right to be free from sexual solicitation. His remark clearly meets each of the two parts of the legal test contained in s. 7(3)(a), in that as her employer, he was a "person in a position to confer, grant or deny a benefit or advancement", and that he "knows or ought reasonably to know that it is unwelcome". Her answer made it clear that his dinner invitations were quite unwelcome. Moreover, his response indicates to the Tribunal that the [sic] he was aware of the meaning and impact of his behaviour.

137The Tribunal finds that all of the incidents of his physical touching of Ms. Baylis-Flannery to be unwelcome by her, and that he knew from her responses that they were unwelcome, in violation of s. 7(3)(a). The Tribunal finds that she consistently recoiled from his touch, told him he was "too touchy", and tried to remove herself from his grasp. These incidents include: touching her hands; touching her arms; rubbing her upper legs; rubbing her shoulders; trying to massage her shoulders; holding her hand after she had a manicure; the chair straddling incident; the tracing of her neckline incident; and the kissing incident. The Tribunal imports the respondent's criminal conviction for common assault against Ms. Baylis-Flannery to find that his ongoing sexual harassment was severe and that it constituted assault. The Tribunal finds that these repeated incidents of unwanted physical contact and assault in the workplace violate s. 7(2) and s. 7(3)(a), since they were perpetrated by him in his role as her employer.

138The Tribunal finds that the respondent deliberately took off his shirt in front of her twice, as set out in § 41 and 42. These incidents clearly violated s. 7(3)(a) of the Code. There is no reason why any employee should ever have to tolerate his or her employer intentionally disrobing before him or her, with the exception of uniformed staff changing in the line of duty, such as firefighters.

139The Tribunal also accepts Ms. Baylis-Flannery's testimony about the racial slurs made to her by the respondent. In particular, the Tribunal finds that his comment to her, "Oh you people", violates s. 5(1) of the Code. The Tribunal also finds that the respondent made racial slurs about what he perceives to be the moral and physical characteristics of black women, as set out in detail in § 22 and 24, and racial slurs he made about black African tribes-people and what he perceives to be their physical characteristics, as set out in § 25 and 26. The Tribunal finds that the patently derogatory comments made to Ms. Baylis-Flannery, about blacks, black Africans, and black women constitute harassment in employment based on race, within the meaning of s. 5(2) of the Code.

140The Tribunal finds that the respondent forced Ms. Baylis-Flannery to view pornographic websites and an online escort service that he made her locate for him. Furthermore, it was corroborated by the testimony of Ms. Vasilodimitrakis, who was also asked to locate a pornographic website for him. The Tribunal finds that the respondent's demand that Ms. Baylis-Flannery look at a computerized image of a young, black female escort, combined with his comment that, "She looks just like you! Look at what she's wearing, do you have a nightie like that?" constitutes serious sexual harassment, racial harassment and poisoned her work environment, in violation of ss. 5(1), 5(2), 7(2) and 7(3)(a) of the Code. The Tribunal follows the earlier decisions of the Board of Inquiry with reference to the general display of pornography in a work area as a source of a poisoned workplace, as per deSousa v. Gauthier(2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128; Abdolalipour v. Allied Chemical Canada Ltd. (September 1[8], 1996), Dec. No. 96-031 [CHRR Doc. 96-153] (Ont. Bd.Inq.); and Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd.(1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311 (Ont. Bd.Inq.). In Waroway, supra, an employer who surprised an employee with the viewing of a pornographic movie was found to have violated then s. 6(2) of the Code, being the right to freedom from harassment in the workplace because of sex.

141The Tribunal accepts Ms. Baylis-Flannery's testimony that the respondent tried to make her look at another computerized sex site on or about December 3, 1999, but that she managed to avoid it. The Tribunal finds that this incident violates ss. 5(1) and 7(2) of the Code. The Tribunal also finds that the respondent's demand that Ms. Baylis-Flannery look at pornographic magazines left behind by a patient to be sexual harassment and another factor within the poisoned work environment she experienced. The Tribunal repeats its reliance on deSousa, Abdolalipour and Waroway, supra, for the proposition that subjecting staff to various forms of pornography poisons the workplace and violates the Code.

142The Tribunal finds that the respondent's unexpected and uninvited visits to her home, which took place on three different occasions, were unwelcome and that he ought to have known they were unwelcome. As such, these visits constitute sexual advances by a person in a position to confer a benefit, within the meaning of s. 7(3)(a), by virtue of s. 9 of the Code. While these incidents took place at her home, they stemmed directly from her workplace relationship with the respondent, a workplace that he alone directed and controlled. The Tribunal follows its decision in Morrison v. Motsewetsho, 2003 HRTO 21 [reported 48 C.H.R.R. D/51] at § 149–50, to support the determination that it would be an unfair result to find otherwise, because of the power imbalance involved, her ongoing rejection of his advances, and the fact that the respondent was uninvited to her home.

The Intersectional Discrimination Exacerbates Her Mental Anguish

143An intersectional analysis of discrimination is a fact-driven exercise that assesses the disparate relevancy and impact of the possibility of compound discrimination, as per the analysis of the British Columbia Human Rights Tribunal in Comeau v. Cote, [2003] B.C.H.R.T.D. No. 32 (QL) [2003 BCHRT 32, 46 C.H.R.R. D/469], and of this Tribunal in Morrison, supra.

144Counsel for the Commission referred the Tribunal to some useful secondary sources, being: "An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims", OHRC, 2002; N. Duclos, "Disappearing Women: Racial Minority Women in Human Rights Cases" (1993) 6 C.J.W.L. 25; and N. Iyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1993) 19 Queen's L.J. 179. The common theme of these secondary sources, as argued by Commission counsel, is that reliance on a single axis analysis where multiple grounds of discrimination are found, tends to minimize or even obliterate the impact of racial discrimination on women of colour who have been discriminated against on other grounds, rather than recognize the possibility of the compound discrimination that may have occurred.

145While the findings of discrimination made in this case are of sufficient gravity that Ms. Baylis-Flannery could succeed on either enumerated ground of race or sex, or on both grounds, one set following the other, the law must acknowledge that she is not a woman who happens to be black, or a black person who happens to be female, but a black woman. The danger in adopting a single ground approach to the analysis of this case is that it could be characterized as a sexual harassment matter that involved a black complainant, thus negating the importance of the racial discrimination that she suffered as a black woman. In terms of the impact on her psyche, the whole is more than the sum of the parts: the impact of these highly discriminatory acts on her personhood is serious. The respondent has wilfully and recklessly injured her dignity and worth. The resulting stress has caused damage to her physical and emotional well-being, as established by the testimony of Dr. Jezdic and by Ms. Baylis-Flannery. The Tribunal takes notice of the article written by K. Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Policies", University of Chicago Legal Forum, 1989, p.139 at 140, where she states:

I argue that Black women are sometimes excluded from feminist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not accurately reflect the interaction of race and gender. These problems of exclusion cannot be solved simply by including Black women within an already established analytical structure. Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.

146The Tribunal finds that the serious forms of discrimination Ms. Baylis-Flannery endured, with respect to her race and her sex, were intersectional in nature. The respondent, in his role as her employer, sexually solicited her, sexually harassed her, racially harassed her, engaged in discriminatory treatment toward her within her employment, and poisoned her workplace with pornography that mirrored both her race and gender. He did so because she is an attractive, young black woman, and all the evidence heard about his views about blacks and Africans, his comments about dating, his visits to strip clubs in Detroit, about his fixation with Malina, about the black female escort he found attractive on the internet, and about his hiring practices indicate that he has a stereotypical view of attractive, young, black women over whom he can assert economic power and control.

147"Human dignity", while not defined in the Code, has been defined by the Supreme Court of Canada in Law v. Canada (Ministry of Employment and Immigration) (1999), 1999 CanLII 675 (SCC), 170 D.L.R. (4th) 1 at § 53, as follows:

Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with the physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities or merits. . . Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full place of all individuals and groups within society.

148The Tribunal finds the approach of Madam Justice L'Heureux-Dubé, for the minority, in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, offers guidance on how to analyze discrimination quite illuminating. She states:

Frameworks vs rigid legal tests

It must be emphasized that there are no absolute preconditions to, or preclusions from, a finding of discrimination. Although the presence of one or more of the aforementioned factors in either of these two categories may tend toward the conclusion that the impug[n]ed distinction is discriminatory, it does not inevitably lead that way. Conversely, the absence of one or more of these factors does not necessarily preclude there still being a finding of discrimination. Courts must treat these considerations as a matrix rather than as a single equation, and as the microscope rather than as the object being studied.

Equality and discrimination are notions that are as varied in form as they are complex in substance. Attempts to evaluate them according to legal formulas which incorporate rigid inclusionary and exclusionary criteria are doomed to become increasingly complex and convoluted over time as "hard" cases become the rule rather than the exception. I prefer to steer clear of those rocky shoals, if at all possible, and to adopt a pragmatic and functional approach to s. 15. I believe that an analysis that examines both sets of factors in the basic framework set out above will enable courts to arrive in a principled manner at an answer that reflects as closely as possible the experience of those in the affected group. If, after examining the nature of both the group and the interest affected, a court concludes that the impact of the impugned distinction is capable of inflicting a non-trivial discriminatory "scar" on the affected group, then it must conclude that this distinction is discriminatory. [Emphasis added.]

149The Tribunal finds that using a pragmatic and functional approach, Ms. Baylis-Flannery can and should be given restitution for all of the enumerated grounds of discrimination that she suffered by adding them together within the restitution she receives for general damages. However, the Tribunal finds that the "non-trivial discriminatory scar" aspect of this case falls within the separate category of mental anguish, and it is greater than it otherwise would have been if the matter were based on a single ground, because the impact of the intersectional discrimination, i.e., having her employer repeatedly diminish her based on his racist assumptions of the sexual promiscuity of black women, pierces her human dignity.

Refusal to Provide Agreed Upon Raise was Reprisal

150The Tribunal accepts the testimony of Ms. Baylis-Flannery that she became more forceful in setting interpersonal boundaries for the respondent. Specifically, the Tribunal accepts her evidence that throughout the fall of 1999 she "wouldn't let him touch me", and that she asked him to stop doing so on two different occasions. The Tribunal also notes the evidence of Ms. Whatmore that she observed the respondent try to touch Ms. Baylis-Flannery and that she would visibly recoil from him.

151The Tribunal finds that, on December 29, 1999, she made a point of telling him that he was "crossing a line" by being "really touchy" and found the conversations he initiated to be "too graphic". The Tribunal further finds that, on January 21, 2000, she "talked to Walter to stop", and asked him to cease his "touching, and don't disrespect my personal space". The Tribunal finds that his response to her request that he cease sexually harassing her, being, "Why do you people get like that?" was a racial slur. The Tribunal accepts the evidence of Ms. Baylis-Flannery as set out in § 48 and 56 and finds that he became abrupt with her and began to micromanage her work.

152The Tribunal also accepts the testimony of both Ms. Baylis-Flannery and Ms. Whatmore to support a finding that the respondent resented Ms. Whatmore for her interference with his relationship with Ms. Baylis-Flannery, and began to refer to her as a "bitch", "a rich kid" and "snobby". The Tribunal finds that this resentment towards her for her efforts to protect Ms. Baylis-Flannery was the motivation in his sudden, unexplained decision to charge Ms. Whatmore rent, even though he originally invited her to share space with him for free.

153The Tribunal also accepts the testimony of Ms. Baylis-Flannery that she had been promised a raise from $8 to $12 per hour within sixty days of employment, when she began her employment at Tri Community Physiotherapy, and that she had not received any negative performance evaluations.

154The Tribunal also accepts Ms. Vasilodimitrakis's evidence that she had received a series of raises from the respondent over an employment period of almost two years, when she occupied the same position as Ms. Baylis-Flannery. The Tribunal finds that Ms. Baylis-Flannery had a more pronounced visceral reaction to the respondent's discriminatory actions than did Ms. Vasilodimitrakis.

155The Tribunal finds that the respondent's failure to give Ms. Baylis-Flannery the agreed-upon raise, in the absence of any performance issues, was reprisal within the meaning of s. 7(3)(b) of the Code for her clear and repeated rejection of his sexual solicitations.

Termination was Reprisal

156The Tribunal has reviewed Ms. Baylis-Flannery's handwritten letter of March 3, 2000, to the respondent, which was entered as Exhibit 6 and is set out in full in § 64. In her letter, she unequivocally stated that, "If you ever make me feel uncomfortable or if you come to me in any disrespectful way I will take legal action. I will report you to the Labour Board and press charges". In this letter, she also stated that she had three witnesses to corroborate her own evidence.

157The Tribunal accepts her evidence that after he received this letter, he was "in a bad mood" and "grumpy", and made more disparaging remarks about Ms. Whatmore. The Tribunal also finds that his micromanagement of her work, and his direction with respect to the spot on the carpet, occurred soon after he received her letter of March 3, 2000.

158The Tribunal accepts the evidence of Ms. Whatmore that she had read Ms. Baylis-Flannery's letter of March 3, 2000, before she gave it to the respondent, and had been emotionally supportive to her.

159The Tribunal accepts Ms. Whatmore's testimony that shortly after the respondent received the letter, he unexpectedly told Ms. Whatmore that she had to find another place to work, and that he was dismissive when she replied that she had just paid her month's rent. The Tribunal accepts her evidence that the next day, Ms. Whatmore found that the locks had been changed, and could not enter the premises. Ms. Whatmore testified that Ms. Baylis-Flannery called her at home the same day to say that she had been fired.

160The Tribunal accepts the direct evidence of Ms. Baylis-Flannery that the respondent fired her on March 17, 2000. The Tribunal also relies on the termination letter provided to her by the respondent, entered as Exhibit 7, and her ROE, entered as Exhibit 8, which both indicate that she was terminated.

161The Tribunal finds that the respondent's termination of Ms. Baylis-Flannery was reprisal within the meaning of s. 8 of the Code, for asserting her legal right to be free from discrimination.

Similar Fact Evidence

162Ms. Baylis-Flannery was a forthright witness and provided the Tribunal with credible testimony in relation to the events that form the basis of her complaint. Her testimony alone was sufficient to establish the allegations made, and the respondent did not refute any of her evidence at the hearing. Moreover, her testimony was corroborated by her witnesses, who were also highly credible. When considering Ms. Baylis-Flannery's 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.). The Tribunal also followed the decision of Megens v. Ontario Racing Commission(2003), 2003 CanLII 26509 (ON SCDC), 64 O.R. (3d) 142 at § 29, in considering the testimony of Ms. Baylis-Flannery and the witnesses favourable to her.

163The Tribunal also found the evidence provided by Ms. Whatmore highly credible. Her evidence corroborated that of Ms. Baylis-Flannery. Ms. Whatmore gave direct evidence of her own observations of the sexual solicitation and sexual harassment of Ms. Baylis-Flannery by the respondent, and the sexual and racial remarks he made. She also corroborated her evidence about the poisoned work environment at Tri Community Physiotherapy, and the respondent's reprisal against Ms. Baylis-Flannery by terminating her employment after he received a letter from her asserting her legal right to be free from discrimination and harassment.

164Commission counsel submitted that the testimony of Ms. Vasilodimitrakis ought to be relied upon as similar fact evidence in support of Ms. Baylis-Flannery's allegations of discrimination based on race and sex, and poisoned work environment.

165Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 governs the admissibility of evidence. The Tribunal is able to rely on this provision to consider similar fact evidence, as per 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.) and Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833 at § 23154 (Ont. Div.Ct.). The Tribunal follows its recent decision in Morrison v. Motsewetsho, supra, at § 176–80, and its analysis of the relevant case law on the issue of similar fact evidence, to conclude that the behaviour of the respondent towards Ms. Baylis-Flannery and Ms. Vasilodimitrakis reached the evidentiary test of striking similarity, and that its probative value outweighed its prejudicial effect.

166Ms. Vasilodimitrakis's testimony of the discriminatory nature of the respondent's conversations with her about his marriage, Malina, African tribes-people and what he perceived to be their physical characteristics and his insistence that she view books about them, his racist childhood reminiscences and slurs about black Africans, his racial and sexual jokes, and his physical touching of her undergarment was highly corroborative of the evidence given by Ms. Baylis-Flannery regarding the same types of incidents.

167Ms. Vasilodimitrakis bears a physical resemblance to Ms. Baylis-Flannery, in that both of them are young, attractive black women. The Tribunal finds that the respondent's decision to approach Ms. Vasilodimitrakis, who was then a cashier ringing up a sale for him, to ask if she would like to be his medical receptionist, bears a striking similarity to the respondent's decision to hire Ms. Baylis-Flannery, without interviewing anyone else, even though many of the other applicants had impressive academic qualifications and past experience as medical receptionists. Ms. Whatmore's evidence that the respondent said, "It's none of your business. I can conduct my hiring any way I want", indicates to the Tribunal that the respondent had already made his hiring decision.

REMEDY

168The Tribunal finds that the appropriate remedy ordered herein be against the respondent in his personal capacity only, since Tri Community Physiotherapy was a sole proprietorship and counsel for the Commission indicated that it no longer exists.

169To compensate Ms. Baylis-Flannery for her losses arising out of the infringements of her rights, the Tribunal makes the following order for general damages, damages for mental anguish, and special damages.

General Damages

170The Tribunal has considered the following in making this award: the loss of dignity and worth suffered by the complainant; the seriousness, frequency, intersectionality and duration of these repeated infringements; the loss of dignity that she suffered from being in a work environment that was poisoned; the gravity of his actions as evidenced by his criminal conviction; and the impact of the two separate acts of reprisal on her.

171The loss of dignity and worth suffered by Ms. Baylis-Flannery was the direct result of the infringement of her right to equal treatment with respect to employment without discrimination, based on race and sex, contrary to s. 5(1) of the Code. The respondent's racial and sexual remarks, his pornographic display of a black woman and of other women, his unwelcome sexual advances that were both verbal and physical, his ongoing remarks about the sexuality of black women, his sexual and racial jokes, constitutes discrimination on the ground of race, sex and sexual solicitation and harassment under ss. 5(2), 7(2) and 7(3)(a) of the Code. In the office, the respondent stripped from the waist up in front of her on two separate occasions, and made three unwelcome visits to her home after business hours. He went so far as to straddle her while she sat in her chair at her reception desk, and to grab her face to kiss her. He refused to give her an agreed upon raise, where there were no performance issues, because she rebuked his advances. He terminated her employment when she gave him a letter that asserted her legal rights to be free from discrimination. He has been criminally convicted of assault and ordered to stay away from her home as part of his probation. By treating her in this manner, he violated ss. 7(3)(b), 8 and 9 of the Code.

172The Tribunal refers to the earlier decisions of the Tribunal and of the Board of Inquiry with respect to cases involving serious racial discrimination, gender discrimination, and sexual harassment in the workplace, retaliation and reprisal found in Fuller v. Daoud(2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd.Inq.); Morrison v. Motsewetsho, supra; Arias v. Desai, 2003 HRTO 1 [reported 45 C.H.R.R. D/308]; deSousa v. Gauthier, supra; Curling v. Torimiro (No. 4)(2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd.Inq.); and Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.).

173In interpreting s. 41(1)(b) of the Code, it is established law that the Tribunal can award general damages for the intrinsic value of a person's human rights, apart from an award for mental anguish, as per Entrop v. Imperial Oil Ltd. (No. 7)(1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 at § 50 (Ont. Bd.Inq.); aff'd (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)); rev'd in part (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 at § 135–37 (Ont. C.A.).

174The Tribunal finds that her general damages are $35,000 against the respondent. This award is based on an assessment of $25,000 for general damages for discrimination based on sex, sexual solicitation and harassment, and reprisal, consistent with Arias; and $10,000 for general damages for discrimination based on race and racial harassment, consistent with Fuller.

Damages for Mental Anguish

175The respondent routinely violated Ms. Baylis-Flannery's rights in a wilful, reckless and callous manner, and it resulted in serious mental anguish to her that has been proven by her own evidence and that of her treating physician.

176There is clear medical evidence before the Tribunal that the mental anguish she suffered caused her to vomit blood, produce an inordinate amount of acid in her stomach, have tension headaches, lose sleep, lose her appetite, suffer from paranoia, and have frequent emotional outbursts, which included episodes of crying and prayer at work. She was afraid to go to work, and afraid to be left alone in the office with the respondent. A colleague had to guard her from the respondent.

177The Tribunal recognizes that Ms. Baylis-Flannery has been through what she described as "emotional turmoil" over these events. The respondent often laughed and ignored her when she objected to his harassment. He taunted her by asking if her spouse was planning on "fighting him". He never apologized or acknowledged that she was upset, because he did not have to do so: he was her employer. This behaviour diminished her further. As she said, "My agony was just to humour him".

178The Tribunal finds that her mental anguish was serious and severe, commensurate with her victimization. She sought assistance from Ms. Whatmore in the office, advice from her family, and she contacted the Sexual Assault Trauma Centre. She sought protection and redress from the College of Physiotherapists, the Ontario Physiotherapy Association, the Commission, the police and the courts, and the respondent was convicted of common assault against her and ordered to stay away from her home as part of his probation.

179Moreover, the Tribunal finds that the acts of retaliation and reprisal against her for rebuking his sexual and racial overtures caused her further stress and humiliation.

180The Tribunal finds that her damages for mental anguish are the statutory maximum of $10,000.

Special Damages

181The Tribunal accepts the evidence before it that Ms. Baylis-Flannery worked on average 35.25 hours per week, and was paid $8 per hour while employed by the respondent, from October 25, 1999, until March 17, 2000, when she was terminated. The Tribunal further accepts the evidence of Ms. Baylis-Flannery that she ought to have received a raise to $12 per hour after she successfully completed the first sixty days of her employment, and that this increase was withheld as reprisal for rejecting his advances, within the meaning of s. 7(3)(b) of the Code.

182Based on this data, the Tribunal finds that she should have been paid $12 per hour, instead of $8 per hour, from December 25, 1999, until March 17, 2000, which is a difference of $1,692.

183The Tribunal has found that her termination was reprisal within the meaning of s. 8 of the Code, and therefore finds that restitution for her subsequent loss of income is necessary to make her whole. However, the Tribunal finds that the requested thirty weeks' pay is excessive for a position that she held for approximately four months, and notes that she did find alternate employment sometime during the summer of 2000. The Tribunal finds that four weeks' pay, at $12 per hour, being $1,692, adequately compensates her for this loss.

184The Tribunal therefore finds that her special damages for loss of income equals $3,384.

Public Interest

185Although the evidence indicates that Tri Community Physiotherapy is no longer in business, the Tribunal refers to the gravity of the discrimination involved in this matter, and its finding of a poisoned workplace, and believes that some public interest remedies are necessary to protect any future employees of the respondent.

186The Tribunal finds that within three months of this decision, the respondent must implement a comprehensive anti-discrimination and anti-harassment policy, that explicitly addresses sexual harassment and racial harassment, and the procedure to be followed in such cases. The respondent must provide a copy of this policy to the Commission within that timeframe.

187The Tribunal further finds that within three months of this decision, the respondent must take an educational training program, facilitated by an expert on anti-discrimination principles, based on the Code.

188The Tribunal further finds that with respect to the future practices of any current or future business that the respondent may own, he must provide the Commission with the names and telephone numbers of any female employees whom he hires or who leave positions of employment at any place of business that he owns or operates, and of any female job candidates who unsuccessfully apply for positions of employment at any place of business that he owns or operates, for a period of two years.

189The Tribunal further directs that a copy of this decision be sent by the Commission to the Executive Committee of the College of Physiotherapists with a recommendation that the College consider taking further action.

Pre-Judgment and Post-Judgment Interest

190In their final oral submissions, the Commission also requested pre-judgment and post-judgment interest on any awards made.

191The Tribunal grants pre-judgment interest on the awards, commencing from the date of the filing of the complaint. The Tribunal finds that to facilitate compliance with the order herein, post-judgment interest is ordered on all damages, commencing thirty days from the date of this decision.

ORDER

192The respondent, Walter DeWilde, is ordered to pay Racheal Baylis-Flannery the following amounts within thirty days of this order:

(1) $35,000 as compensation for her humiliation and loss of dignity resulting from the infringement of her rights under ss. 5(1), 5(2), 7(2), and 7(3)(a) to be free from racial and sexual discrimination, sexual solicitation and harassment, racial harassment, retaliatory treatment for the rejection of such solicitation, and as compensation for the loss of the right to be free from reprisals, as per ss. 7(3)(b) and 8;

(2) $10,000 as compensation for her mental anguish caused by the infringement of her rights;

(3) $3,384 as compensation for her total loss of earnings;

(4) pre-judgment interest on the awards, commencing from the date of the filing of the complaint, and post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act commencing thirty days from the date of this order.

193Further, the respondent is ordered and directed to take the following actions to achieve compliance with the Code in respect of his future conduct and practices:

(1) implement a comprehensive anti-discrimination and anti-harassment policy, that explicitly addresses sexual harassment and racial harassment, and the procedure to be followed in such cases, and to provide a copy to the Commission, within three months of the date of this order;

(2) attend an educational and training program, facilitated by an expert on anti-discrimination principles, based on the Code;

(3) 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 or operates, for a period of two years.

194The Commission is ordered and directed to provide a copy of this decision to the Executive Committee of the College of Physiotherapists, with a recommendation from the Tribunal that it consider further action in this matter.

195The 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.