Ontario Human Rights Commission v. Gillies, 2004 HRTO 3

Human Rights Tribunal of Ontario

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Corrine L. Colvin and Barbara Jackson

Complainants

-and-

Douglas Gillies and Hillcrest Variety

Respondents

DECISION

Adjudicator: Mary Ross Hendriks

Date: April 29, 2004

Citation: 2004 HRTO 3

Human Rights Tribunal of Ontario

400 University Avenue, 7th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

APPEARANCES

Ontario Human Rights Commission ) Eddie Taylor, Counsel

Corrine L. Colvin and ) On their own behalf

Barbara Jackson, Complainants )

Douglas Gillies and ) Douglas Gillies and Mary Gillies

Hillcrest Variety, Respondents )

INTRODUCTION

1Ms Corrine Colvin and Ms Barbara Jackson (the “Complainants”) allege that Douglas Gillies (the “Personal Respondent”) violated their rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). They each allege discrimination based on sex, sexual solicitation and harassment, by a person in a position to confer, grant or deny them a benefit or advancement.

2The Complainants allege that the violations of their rights under the Code took place during the course of their employment with the Personal Respondent, Mr. Gillies. He and his wife are partners who own and operate Hillcrest Variety in Atikokan, Ontario, where the Complainants worked as clerks. The Complainants allege that the Personal Respondent knew or ought to have known that his advances were unwelcome, and that Hillcrest Variety was aware of the sexual harassment of female employees by the Personal Respondent and failed to take appropriate steps to prevent it.

3The Ontario Human Rights Commission (the “Commission”) chose to refer the two Complaints together for a hearing on the merits, based on the Commission’s statutory right as gatekeeper, under section 32(3) of the Code.

4The Personal Respondent categorically denied the allegations made by the Complainants that he acted in a sexually improper way towards them.

5Rather, both the Personal Respondent and Hillcrest Variety allege that the Complainants have engaged in a “conspiracy” against them.

6The Respondents questioned the credibility and character of both Complainants, and Ms Gillies accused them of perjury at several points during the hearing.

7The hearing on the merits was held in Atikokan on February 2, 3, 4 and 5, 2004.

8After hearing oral argument from both counsel for the Commission and Ms Gillies, agent for the Respondents, and after receiving the Commission’s Brief of Authorities, the Tribunal provided all parties with the opportunity of filing any additional final written submissions and authorities. Counsel for the Commission declined to file written submissions, preferring to rely on his closing oral submissions. The Complainants chose to rely on the Commission’s closing oral submissions as well. The Respondents chose to file written submissions, in addition to their closing oral submissions. The Tribunal permitted them to file their written submissions by February 23, 2004, and allowed the Commission until March 1, 2004, to reply to any new issues raised. The Respondents did file final written submissions, to which the Commission replied.

PRELIMINARY MATTERS

9The Respondents failed to make disclosure or file their Response, although they were directed to do so on numerous occasions by the Tribunal, prior to the hearing on the merits. They did, however, send a letter to the Tribunal’s Hearings Officer, which was received by telefax on June 16, 2003, stating:

Our response is that we deny all allegations but cannot give disclosure until after court on June 17th. As noted in the attached memo, we had asked Human Rights not to disclose facts to the complainants as the case was yet to go to court. As you can see our response was shared without our permission and then tried to make light of the matter. Also we were not told it was shared and may have jeopardized the case. Sorry but Human Rights gives me no choice but to not send disclosure until Court is over as some of the material will be used in Court. Mary Gillies, Hillcrest Variety.

The Tribunal received no other communication from the Respondents subsequent to this telefax, even though they had offered to make disclosure after June 17, 2003. The Tribunal’s Registrar wrote to them on August 25, 2003, and re-directed them to serve and file their Response and to make disclosure “immediately.”

10During the pre-hearing conference call, held on September 22, 2003, the Respondents asked the Tribunal for a further indulgence to serve and file their pleadings and to make disclosure, even though they had missed the two previous deadlines set by the Tribunal to do so. Ms Gillies asked for this indulgence, due to recent surgery that had left her in a state of recovery for “six weeks.” The Tribunal granted them this third indulgence, without requiring any medical evidence from Ms Gillies, even though the Respondents had never contacted the Tribunal in advance of the pre-hearing conference call to seek a further extension of time, or followed up on their letter of June 16, 2003.

11In its Interim Decision of September 22, 2003, Colvin and Jackson v. Hillcrest Variety et al., 2003 HRTO 19, the Tribunal ordered the Respondents to serve and file their Response and make full disclosure, including written will-say statements from their witnesses, to the other parties by October 1, 2003, on a peremptory basis, as set out in the following reasons contained in para. 11:

The Tribunal also grants the Respondents a further indulgence, on a peremptory basis, to serve and file their pleadings, and make full disclosure, no later than October 1, 2003. The Tribunal confirms that it advised the Respondents, during the pre-hearing conference call, that if they fail to file their pleadings and make full disclosure by October 1, 2003, that the Tribunal will require them to serve and file a formal, written notice of motion (which includes a sworn affidavit) setting out why such leave should be granted to them. The Tribunal further cautioned the Respondents that failure to file their pleadings and make full disclosure may seriously prejudice their ability to lead evidence in their case. They said they understood this and agreed to comply.

12The Tribunal also granted the motion, brought by the Commission, on the consent of all parties, that the venue for the hearing be changed to Atikokan: Colvin and Jackson v. Hillcrest Variety et al., 2003 HRTO 19.

13The Respondents failed to comply with the Interim Decision. At the outset of the hearing, the Respondents sought to enter time-sheets taken from Hillcrest Variety as evidence. Counsel for the Commission objected, and referred back to the Interim Decision, in which the Tribunal held that if the Respondents failed to make disclosure after their third indulgence, they would have to bring a formal motion to do so. The Respondents argued that as small businesspersons, they had been too short of time to comply with the Interim Decision. The Tribunal offered the Respondents an adjournment so that they could arrange for an affidavit to be sworn in connection with such a motion, but they declined to do so.

14The Tribunal upheld its earlier Interim Decision and refused to allow the Respondents to enter these documents, or any other documents, as evidence, without a formal motion being brought, because that the Respondents had been given three prior indulgences, and the prejudice to the Complainants of being unable to properly prepare themselves outweighed the interests of the Respondents to enter their documentary evidence at the outset of the hearing.

ISSUES

15The Tribunal considered the following issues:

(1) Were the Complainants’ right to equal treatment with respect to employment without discrimination based on sex infringed, contrary to ss.5(1) of the Code?

(2) Were the Complainants’ the subject of sexual solicitation and harassment in the workplace, as per ss.7(2) of the Code?

(3) Were the Complainants’ right to be free from sexual solicitation from a person in a position to confer, grant or deny them a benefit or advancement, where the person making the solicitation or advance knows or ought to reasonably know that it is unwelcome infringed, contrary to ss.7(3)(a) of the Code?

(4) Was Hillcrest Variety aware of the infringements of the Code if found to be committed by the Personal Respondent, and did the Hillcrest Variety take the appropriate steps to prevent it?

(5) Do the acts of the Personal Respondent, as an officer or partner of the Hillcrest Variety, give rise to liability for Hillcrest Variety?

DECISION

16The Tribunal finds that Mr. Gillies abused his position of authority as a partner of Hillcrest Variety by violating Ms Colvin and Ms Jackson’s rights to equal treatment with respect to employment without discrimination based on sex, and committed acts of sexual solicitation and harassment against them, contrary to the Code. Their workplace was poisoned by his sexual solicitation and harassment of them and of other staff. The Tribunal finds the Respondents jointly and severally liable to the Complainants.

LIST OF WITNESSES

17The Tribunal heard evidence from eight witnesses, being the two Complainants, two other witnesses testifying on their behalf, the Personal Respondent, Ms Gillies, the physician who treated Ms Gillies in the local Emergency Department on the evening of February 3, 2004, and an independent eyewitness who sells and services Pepsi-Cola products in Atikokan, as follows:

1. Barbara A. Jackson, Complainant, testified on February 2, 2004;

2. Corrine L. Colvin, Complainant, testified on February 2, 2004;

3. Nicole Thivierge, witness, testified on February 3, 2004;

4. Wendy Happy, witness, testified on February 3, 2004;

5. Douglas Gillies, Personal Respondent, testified on February 3, 2004;

6. Deborah Ann MacDougall, witness, testified on February 4, 2004;

7. Dr. L. Burechato, treating physician, testified on February 4, 2004; and

8. Mary Gillies, testified on February 4 and 5, 2004.

SUMMARY OF EVIDENCE

Barbara Jackson

18Ms Jackson is a thirty-seven year old woman, who is married and has two children. She grew up in Southern Ontario, obtained a college diploma in accounting, and has lived in Atikokan for the past eleven years. She worked inside the home until her children were in school on a full-time basis. She had not worked outside the home for a period of eight or nine years. When she began at Hillcrest Variety in October, 1997, it was her foray back into the paid workforce. She testified that she did not know Mr. or Ms Gillies prior to working at Hillcrest Variety. She recently completed a double diploma through Northern College as a social service worker and as a drug and alcohol counsellor. She is now employed at Atikokan Community Counselling as a Case Manager, and works with clients with mental illnesses.

19Ms Jackson described Hillcrest Variety as a small grocery store, made up of the following sections: produce; butcher; frozen food; diary products; and canned goods. She testified that the chicken take-out area was originally upstairs, and then moved downstairs and an ice-cream counter was added to it. In a normal workday, one person would work in the store, and another person would work in the chicken take-out section. The chicken take-out section and the produce section were at opposite ends of the building. The shifts varied. The shift for the store began at 6 a.m. and ended at 1 p.m., and the shift for the chicken take-out area began at 10 a.m. or 10:30 a.m. The second shift began at 1 p.m. and ended at 5 or 6 p.m., and the third shift ran from 5 to 11 p.m. All the employees were female, except for a male butcher. Most of the employees were “my age,” except for the “young girls” who worked in the chicken take-out area. Whoever did the first shift was responsible for the produce (which took about three hours per day), the dairy, and the re-stocking of shelves. The second and third shifts did not overlap in the winter, but did in the summer months. She never worked in the chicken take-out area.

20When Ms Jackson was hired, her duties were to use the till, wait on customers, stock shelves, write up orders, and included bookkeeping. She worked full-time for the most part, but began by picking up what hours were “left over” from other shifts. During her last year of employment at Hillcrest, she only worked weekends so that she could study a college program.

21Ms Jackson referred to her Complaint, entered as Exhibit 1. She testified that the Personal Respondent’s unwelcome sexual advances began with “name calling.” She said that, “if Doug was drinking…he’d call you ‘sweetheart’ or ‘baby.’”

Apricot Incident

22Ms Jackson testified that in 1998, she and Mr. Gillies had a misunderstanding over her removal of some apricots from the store. Ms Jackson spoke to the Gillies’ daughters about making apricot jam for Ms Gillies as a surprise, since they were friends. The Gillies drove by the store while Ms Jackson was taking the apricots from the store, and Mr. Gillies thought she was stealing them and a discussion took place. After this misunderstanding was rectified, she said that Ms Gillies thanked her and said she knew she would not steal.

23Ms Jackson was working on the Saturday night that the Gillies’ daughter was having her wedding reception. The Gillies returned to the store to pick up some meat trays for the reception. While Ms Gillies was in the bathroom, Mr. Gillies said to Ms Jackson, “Sweetheart, I’m sorry about that today. I know you’re a great worker and you wouldn’t have done that.” Mr. Gillies then hugged and kissed her. He asked her to come to the wedding reception. Ms Jackson testified that she walked away and felt very angry, because “Mary wasn’t there” and “Doug was very drunk.” Ms Jackson said that she only told her spouse, because she “thought it would hurt Mary if I told her Doug called me sweetheart.”

24The day after the wedding, Mr. Gillies came into the store, “drunk again,” while Ms Jackson was between the tills. Again, he said to her, “Ah, sweetheart, I’m very sorry,” and tried to kiss her. Ms Jackson told Ms Gillies about this incident. Ms Jackson testified that she replied, “He’s drinking, Barb, let it go. He’s sorry he accused you of stealing.”

Christmas 2000 Incident

25Ms Jackson testified that she and Ms Gillies “had an understanding” that Ms Jackson would work alternate Christmases. When she asked Ms Gillies if she could take Christmas 2000 off work, Ms Gillies told her that Ms Colvin also wanted to take it off, and said that she did not know how to handle it. They had a group discussion on this issue.

26Ms Jackson testified that she took “the time off anyway with my shifts covered,” despite Ms Gillies’ objections. Ms Gillies was also angry that she did not check with her to ensure that she could switch shifts, which was contrary to a written policy of Hillcrest Variety. Ms Jackson insisted that she be paid for this time off since it was a “statutory holiday,” and Ms Gillies refused. Ms Jackson reported the incident to the authorities to ensure she was paid for this time. Ms Gillies questioned Ms Jackson as to whether or not this incident changed her “attitude towards me” and lead to her “getting on her plan to discredit us and our store.”

27Ms Gillies asked Ms Jackson if she had asked her to do a milk order from Thunder Bay, and Ms Jackson stated that she could not recall. Ms Jackson agreed that after the “Christmas episode,” she and Ms Gillies stopped having coffee together.

Her Interaction with Other Employees and Customers

28Ms Gillies asked Ms Jackson how she had treated Ray McQuarrie, and she replied, “Good.” When asked in cross-examination about “laugh[ing] at him behind his back”, she said, “No.” Ms Jackson denied that she and Mr. McQuarrie had a dispute about some boxes that were unloaded in an aisle, and also denied recalling a conversation with Mr. McQuarrie when he purportedly said, “You girls should dress a little nicer,” and she purportedly retorted by asking him what to wear.

29During cross-examination, Ms Jackson admitted that she called out, “What a fucking bitch” after another female employee refused to stock some shelves. Ms Jackson denied having told Ms Gillies, “Oh, fuck off, do you want me to go to Food Land to shop” after another incident.

30In cross-examination, Ms Jackson was asked about her working relationship with the first butcher, Dale Carr. She said, “we were civil” and added, “we talked.” Ms Gillies asked Ms Jackson, “Did you talk dirty to Dale?” and she replied, “no.”

31When asked if she had heard Ms Gillies call customers names or ridicule them, she stated that she had not heard her call them names but “sometimes” she did ridicule them. Ms Jackson testified that she “never heard Doug make sexual comments about customers” but that he had made some other comments about them. She did not elaborate further on that point.

32During cross-examination, Ms Jackson was asked to explain why she “didn’t like Corrine.” She responded by saying, “We’re two different kinds of people. She swears a lot and has a vulgar mouth…We rubbed each other the wrong way…We did our jobs.” When asked if she had heard Ms Colvin comment, “Look at the high beams on her,” she denied hearing it. When asked if she and Ms Colvin had made a “pact,” she responded, “I’d support her in this – no big pact or plan.”

33When asked how Wendy Happy, her former co-worker, became involved with the Commission, she replied, “probably when they did the investigation.” Ms Happy is one of the Complainants’ witnesses. Ms Jackson denied discussing how “much money she might receive” with her, presumably from making a Complaint to the Commission.

Discussion of "Rape" Conviction

34In cross-examination, Ms Jackson was asked if she had told the other employees at Hillcrest Variety that Mr. Gillies had been convicted of “rape” in the past, and she confirmed that she had done so. When asked if she had ever questioned him about it directly, she said she had not. When asked why she would “slander him without checking,” she replied that she “considered the person to be reliable” who had discussed it with her.

35The Respondents admitted that Mr. Gillies had in fact been convicted of some sort of sexual impropriety with a woman under the age of sixteen, the name of such offence Mr. Gillies could not recall. Their evidence on this issue is set out in full in paragraphs 123-125.

Company Car Incident

36Ms Jackson admits that she was working one day when Ms Gillies returned to the store in a yellow truck. During cross-examination, she denied saying to Ms Gillies, “Is it a company vehicle?” However, she did refer to it as a “company car,” and admits that she took it for a test drive. She denied the allegations made by the Respondents that she went spinning out of the driveway in it or that she threw the keys back at Ms Gillies after this test drive.

Cub Camp Trip to Kenora

37In cross-examination, Ms Jackson confirmed that she had gone on a cub camp trip to Kenora with Mr. Gillies, and four boys. When asked why she went away with him if she was afraid of him, she said, “At the time of the trip, to cub camp, I wasn’t afraid of him and I wouldn’t be alone with him.” The Tribunal heard no evidence from any of the parties when this trip occurred, nor when Ms Jackson first became aware of Mr. Gillies’ past conviction.

38When asked if she had said to Mr. Gillies, “I wasn’t a good girl all the time you know,” she responded that she “could not recall the context” of the alleged remark.

Damage to their Friendship

39Ms Jackson testified that in March (she cannot recall the year), she went out for a few drinks after work with some other women and that they were “kinda loud--hooting and hollering.” The Gillies dropped into this bar, and Ms Jackson said “hi” to Ms Gillies. Ms Gillies said that Mr. Gillies was angry that they were carrying on and that they should be home to their husbands. The Gillies left the bar. The women, including Ms Jackson, proceeded to go to a local night club, where they ran into the Gillies again. Many people were dancing, and Ms Gillies joined in. Ms Jackson said Mr. Gillies was mad, but that Ms Gillies “didn’t care.”

40Ms Jackson did not go to work the next day, but returned the following Monday. She said that Ms Gillies came into the store and avoided her. Ms Jackson said that Ms Gillies had one eye swollen shut and that she “knew Doug had beaten her up.” Ms Jackson talked to another co-worker and asked what they should do. Ms Jackson tried to talk to Ms Gillies and ask if there was anything she could do. She testified that Ms Gillies did not want to talk to her about this situation, and after this incident, Ms Gillies avoided her. Further, Ms Jackson said that after this incident, she had no respect for Mr. Gillies and would only speak to him if she had to do so.

"Sassy" Incident

41Ms Jackson had what she termed “a normal” period, without incident, of about two years at Hillcrest Variety, until July 4, 2001. At the time of this incident, Ms Jackson had the summer off from her studies and had asked Ms Gillies for “summer hours,” specifically, the night shift, so that she could go to work in the evenings after she spent the day with her children. Ms Gillies agreed to this request.

42Ms Jackson said that Ms Gillies told her that she was leaving her car at the store, but going out to play cards with her friends. She said that she did not want Mr. Gillies to know where she was and asked Ms Jackson not to tell him. Later that night, Mr. Gillies had come into the store. He had been drinking. Ms Jackson told him she did not know where Ms Gillies was, and he confronted Ms Jackson about Ms Gillies’ car being in front of the store. She testified that he said, “You’re a sassy one. I like my women sassy. They’re good in bed and I’d like to take you to bed.”

43She said that she was very angry. She stated, “I knew he was drunk and what he was capable of when he was drunk. I gave him a look to fuck off, pardon my language, but that’s how I felt. He said, ‘C’mon, don’t you have anything to say?’ She replied, “I wouldn’t waste my breath on you.” She added, “When I wouldn’t answer him, he got angry. He went to make coffee. He left and came back in. ”

44Ms Jackson testified that Mr. Gillies went in and out of the store all night, staring at her, and walking out again. That evening, the potato chip delivery person was outside and asked her why she was upset and why her hands were trembling. She said that she told him what had happened. He offered to stay with her until her shift was over and the store was locked, which he did. She finished her shift, closed up the till, and left at 11:15 p.m.

45She testified that, “I wasn’t sure what he was capable of doing, because he had beaten up Mary and another time Doug was angry and he’d kicked in the office door upstairs.” After she had worked at Hillcrest Variety for a year or two, she said that it came to her attention that he had a prior conviction for raping somebody twenty-five years ago. When this “sassy” incident occurred, she said she was afraid of him. The next day, she reported the “sassy” incident to the butcher and store manager, Ray McQuarrie.

46Ms Jackson testified that she told Mr. McQuarrie what had happened “on the Wednesday,” and said that she was tired of putting up with this, afraid for her physical safety, and that if he didn’t “do something about Doug and it happened, again, I’d go to the police. ”

47She said that Mr. McQuarrie was swearing and cursing, and said, “Damn Doug – he has to watch himself.” He told her that he would “take care” of both Mary and Doug. The next day, Mr. McQuarrie had spoken to the Gillies and reported that “Doug had gone to a friend’s cabin for the rest of the week.”

48Ms Jackson testified that she had been off work that weekend, and had a bad sunburn from canoeing. When she went to work on that Sunday night, she wore a tank top because of the sunburn. Mr. Gillies entered the store around 4 p.m. that evening, and said, “Ah sweetheart, I see you have a sunburn, does it hurt?” She said that she was “pissed off,” because she had made it clear to Mr. McQuarrie that “any more comments and I’d go to the police, and felt Doug was flaunting it in my face that he could do what he wanted to do.” She did not reply to Mr. Gillies, she just walked away. This was the last incident with Mr. Gillies that involved her directly.

Incident with Nicole Thivierge

49Ms Jackson testified that the night before Mr. Gillies was arrested, she had gone into Hillcrest Variety to purchase her groceries. Ms Thivierge was in the store, “crying and shaking,” and said that she “needed my help.” She told Ms Jackson that she was scared that either Mr. or Ms Gillies would see her.

50Ms Jackson said that Ms Thivierge had told her that, “Doug had come up behind her, grabbed her hips, ground himself into her, and said she was a ‘hot one.’” Ms Jackson told Ms Thivierge what the police had told her, which was that “if he ever touched anybody, we could call the police and that they’d come.” Ms Jackson also told her that she “would do whatever she wanted: she would call her parents; call the police; or talk to Mary.” She said that Ms Thivierge said she wanted her to leave it alone so that she could have some time to think. Ms Jackson purchased her groceries and went home. She tried to call Mr. McQuarrie, but he was not home. Ms Jackson decided to call Corrine Colvin, even though they did not get along.

51During cross-examination, Ms Gillies asked Ms Jackson if she left Nicole alone, even after she told her that she was scared. Ms Jackson agreed that she did, and said, “Yes, it was her choice.”

Meeting to Discuss Incident regarding Ms Thivierge

52Ms Jackson testified that she met with Ms Colvin and another friend, Darlene Cox, to discuss “the incident with Nicki.” They agreed that “something needed to be done before he hurt somebody.” Ms Jackson said Ms Colvin was upset and swearing. During this meeting, Ms Jackson testified that, “Corrine told me and our other friend that Doug had sexually assaulted her and that she’d done nothing.” Ms Jackson said that it was Ms Colvin who decided to call the police. Ms Jackson said that the three women at this meeting were, “…almost mother bears. We cared about the girls we worked with. He can do what he likes to us, but when it came to the young girls, enough is enough, he has to be stopped.”

53Ms Jackson said that Ms Colvin shared what had happened to her and that she was willing to go to the police to protect Ms Thivierge. The three women called the police, and they came and talked to them. When they heard Corrine’s story, they told us what would happen. Ms Jackson said that Ms Colvin wanted to go ahead with the charges. The police suggested that she “think about it and come down tomorrow if you feel the same way.” Ms Jackson said that the three women told the police of their concern for Ms Thivierge, who was still in the store, and the police said they would drive by at 11 p.m. to ensure that she went home. The police also explained that if he touched them, it was sexual assault, and that if he spoke to them, that was harassment and they should report it to the Ontario Human Rights Commission, because it would be handled separately.

54The next day, Ms Jackson said she asked Ms Colvin “if she was sure” and she said she was. Ms Jackson testified that, “even though we basically hated each other, we’d support each other through this ordeal.” Ms Jackson said Ms Colvin said to her, “If I do this, you’d better stand by me,” and that she replied, “I will.”

55Ms Jackson referred to her police statement, dated August 31, 2001, entered as Exhibit 2. She recalled returning to Hillcrest Variety after giving her police statement, and that she continued to work there for about one month. There were no incidents during that time. She said that Mr. Gillies was arrested, and that it “went to court in Fort Francis,” and that he was told to stay away from the store. Ms Jackson said Ms Gillies did not speak to her that month. Her last day of employment at Hillcrest Variety was on September 23, 2001.

56Ms Jackson began her new position at Home Hardware in early October, 2001, on a part-time, weekend basis, as she was attending college full-time. She worked there about one year. She also worked part-time at Community Counselling, and at Integrated Services for Northern Children. She also worked at a college placement, Family and Children Services (“FACS”), which was from the spring until June, 2001. On January 6, 2003, she began her current position.

57After Mr. Gillies’ arrest, Ms Gillies approached the three women who had contacted the police, and Ms Jackson felt afraid for her own safety and for that of her family. She now locks her door, which she never did before, and requires her children to use a key after school. She is still afraid that Mr. Gillies will show up, “after drinking,” and “be obnoxious,” but she said she is not afraid he would kill her.

Incident at Home Hardware Store

58Ms Jackson testified that during the summer of 2002, while working at Home Hardware, Mr. Gillies entered the store with another man named Bruce Davidson, looked her way, and said, “There’s that fucking bitch. She doesn’t know what they’re doing.” Despite this comment, Ms Jackson still waited on him because he was a customer. Mr. Gillies was looking for a supply for a hose. Again, Mr. Gillies turned to Mr. Davidson and said, “I told you, she’s fucking stupid and don’t know shit.” She said that she went to the back of the store, and the other employees who were aware of what had transpired at Hillcrest Variety dealt with Mr. Gillies. She testified that her manager told her that she did not have to wait on them again if they returned to the store. Neither the manager of Home Hardware nor Mr. Davidson testified.

59The Tribunal asked Commission counsel what the purpose was of this evidence, given that it had not been included in either the Complaint or the Statement of Facts and Issues. Counsel for the Commission responded that it had to do with her dignity and the continuing impact of these events on her as a person, but were not a separate claim. The Tribunal agreed to permit testimony from a witness at the Home Hardware store, subject to cross-examination, but no witnesses were called to substantiate this new evidence. The Tribunal allowed the evidence to go into the record, but said it would consider later what weight to give it, if any.

Complaint to Children and Family Services

60During cross-examination, Ms Jackson testified that she had been at the Gillies’ home “three or four times in the four years I worked” at Hillcrest Variety. She also confirmed that she had made a complaint to Children and Family Services, alleging that the Gillies drink and fight at home. When asked why she made this complaint, she said that she had been discussing the situation at Hillcrest Variety with another worker at FACS, and had told this other worker that, “I knew Doug had beat up Mary.” As noted earlier, Ms Jackson had worked there in the spring and summer of 2001 during a college placement.

61The other worker told her that as a counsellor, she had an obligation to report it to child protection. Ms Jackson said she replied, “Everyone in town knows he hits her, why are you doing this to me?” The other worker said that Ms Jackson was the first person who knew first hand that she had been hit. Ms Jackson testified that she was given until the end of the day to go to a supervisor to tell him what had taken place or the other worker would go and tell him what she knew. She said that because of the duty to report as a counsellor, “I’d lose my diplomas and not be able to be a counsellor. I was backed into a corner and had to do it. My comment was that Doug and Mary were fighting when they were drinking.” Ms Jackson sobbed during her testimony and said, “When I told my supervisor, I sat there crying because I knew that all this crap would come up again and I’d have to be afraid again.”

62During cross-examination, Ms Jackson said that when she saw the bruises on Ms Gillies’ face, she knew Ms Gillies had been hit by her husband because “Maxine” had told her, and Maxine was Ms Gillies’ best-friend. During Ms Jackson’s cross-examination, Ms Gillies blurted out, “I left and went to her house because I didn’t want to talk to you.” Ms Gillies then asked Ms Jackson, “If I had a bump on my head because of a minor car accident that I had because I was impaired?” Ms Jackson responded, “No possibility, whatsoever.” Maxine did not testify.

Impact on Ms Jackson

63Ms Jackson testified that, “after it all happened,” she felt that she “shouldn’t have to put up with his comments, drunk or not drunk,” and that “…if I couldn’t stand up to him and couldn’t make him realize what he was doing was wrong, other people would get hurt.” She said these incidents had been “very degrading to have happen” to her. She added that she was “very private about sexual matters” and found it “very offensive that he said he wanted to take me to bed.” She now feels a bit more cautious around men, although she feels safe with the men she works with now.

64She said that she stayed at Hillcrest Variety because the hourly wage was $8.40, rather than other positions that only paid $6.85. She told herself, “You’re tough, you can stick this out, don’t give up an $8.40/hour job just because of Doug.”

Corrine L. Colvin

65Ms Colvin is a thirty-seven year old woman, who is married and has twins. She was born and raised in Atikokan. She began her employment at Hillcrest Variety in September, 1999, after answering an advertisement in the newspaper for a clerk. Ms Gillies hired her. She earned $8 per hour at Hillcrest Variety, which was above the $6.85 minimum wage. Most of the management functions of the store were performed by Ms Gillies, although Mr. Gillies sometimes gave Ms Colvin instructions, such as asking her to take the garbage out.

66She described the duties of this position as including: running the till; stocking the shelves; unloading trucks; pricing; opening and closing the store; and added that she was “often busy”, and that was “lots to do there.” She testified that she worked on various shifts, but mostly on the night shift, from 5:15 until 11 p.m. At closing time, she would cash up the till, sweep and wash the floor, and lock up the store.

67She said that Ms Gillies was “sometimes” there during her shift, but not on Thursday nights, when Ms Gillies plays darts. She described Mr. Gillies’ involvement “in and out lots of times”, and said that he was “always checking on stuff on a daily basis.”

68Ms Colvin referred to her Amended Complaint, entered as Exhibit 3. She testified that the Personal Respondent’s unwanted sexual advances began in the spring of 2000, with unwelcome comments, and that this went on for eight to nine months. He addressed her as “hey baby”, “honey”, “good looking”, and “sexy.” She said that she ignored him and carried on, but did not tell him to stop. Ms Colvin said that when he made these remarks to her, sometimes he had been drinking, but other times, he had not.

Incident at the Ice Machine

69Ms Colvin testified that in March or April, 2001, she was in the back of the store, and bent down in a forward direction to take ice out of the ice machine. The ice machine is in a small room, between the sink and the shelving. It could hold two or three people. Mr. Gillies was near the door of this small room when the incident occurred.

70She said that, “Doug came up from behind me, grabbed me, and told me I had a nice ass.” He added, “I bet you sure could shake it in bed.” He had put his hands on her behind. Ms Colvin said she jumped, because “it freaked me out,” and she felt “startled.” She testified, “I turned around, and told him to fuck right off and don’t ever touch me again!” She testified that she felt “freaked out that he did something stupid like that.” Ms Colvin said she then walked right around him and went into the regular part of the store.

71Ms Colvin testified that she did not discuss this incident with Ms Gillies. When asked why she did not tell her, she said, “I didn’t want to hurt her. She had a full plate.” She did discuss the incident with her spouse, who “told me to quit and get the hell out of there.” However, she said that she did not want to leave, she “liked working there, and I liked Mary.”

The First Truck Unloading Incident: "Rubber Arms"

72Ms Colvin testified that in May 2000, she was unloading a truck, and the bags of flour involved were heavy. As she kept lifting the bags of flour off the truck and putting them in the aisle, she told Mr. Gillies that, “my arms are getting like rubber.” He replied, “You’re just like superwoman. You have rubber arms and silicon breasts, not to say your breasts are fake or anything, they’re much too nice to say something like that.” However, in her Amended Complaint, Ms Colvin had quoted him as saying, “You are just like super woman, rubber arms and rubber tits.” At the time of this incident, Ms Colvin said “everyone was there” helping unload the truck, including Ms Gillies, the truck driver, and “DJ”.

73Counsel for the Commission asked Ms Colvin if Mr. Gillies had said “breasts” or “tits.” She said she was “not sure” which he had said. Ms Colvin did not tell Ms Gillies of this incident either. When asked why, she said, “She should know the way her husband is without me telling her.”

Incident at the Pub

74Ms Colvin testified that Ms Gillies asked her to lock up the store at night, approximately twice per month. She said she did this as a favour, for which she was not compensated. Ms Colvin had her own set of keys to the store.

75Ms Colvin testified that in October, 2000, Ms Gillies called her at home, and asked her to go down to the store to lock it up. Ms Colvin waited for the person on shift to finish with the cash, and then she locked the door, and went down to the Union Pub where Mr. and Ms Gillies were to bring Ms Gillies’ keys over to them for the next day. Ms Gillies went to the bathroom. Ms Colvin said she was yawning. Mr. Gillies asked her if she was tired. Then he said, “How can you fuck if you’re tired? But I bet you can fuck anyway because you’re good in bed.” Ms Gillies returned and sat down, and Ms Colvin got up and left.

76Ms Colvin said that there were a few people at the table, but that no one could have heard this conversation. Once again, she did not discuss it with Ms Gillies. When asked how she felt, she said, “I thought what an asshole, I’m out of here, and left.” Her husband was upset about this incident.

The Second Truck Unloading Incident

77Ms Colvin testified that the second truck-unloading incident happened one evening, while they were loading and unloading boxes. She said that Ms Gillies was there, “along with DJ, Christie and her kids, and the truck driver.” She said that Mr. Gillies “had been drinking,” and that while they were each carrying boxes, he hip-checked her or rubbed against her when he passed her going in the opposite direction each time. During cross-examination, she was asked why no one else saw this occur. She responded that, “because there were different aisles,” she did not think anyone saw what had happened, and added, “nobody said anything if anybody had seen anything.”

78Ms Colvin said that when Mr. Gillies had been drinking, “he was kind of creepy,” and that “you don’t know what to expect.” She testified that she tried to avoid him when he was in the store and had been drinking, and she would go to the other end of the store, or go outside for a cigarette, stock the shelves, or go upstairs to get stock, in order to “put distance between myself and him.”

The "Drill a Hole" Incident

79Ms Colvin testified that on August 29, 2001, she went outside of the store toward the trailer in the back, to ask Mr. Gillies if he was going to the dump, because she needed to unload the garbage. He made a gesture standing up, that included moving his arms, and moving his pelvis back and forth, and said he was “going to drill or make a hole, while making these motions.” She said that, “he was pretending to have sex with his arms and hip movement.” When asked how she felt, she said, “I thought what a dink!”

80Ms Colvin said she did not tell Ms Gillies or the other employees at the time, but did tell her spouse. His response was, “I wish you’d quit that fucking place.”

Meeting Concerning Ms Thivierge

81Ms Colvin testified that she went to the home of another employee named Darlene, to meet with her and Ms Jackson, after “Nicki had already called me at home…crying.” Ms Colvin had already driven down to the store to talk to Ms Thivierge. She told Ms Colvin “what he’d done to her.” She asked her if she wanted to go home, but Ms Thivierge told her she wanted to finish her shift.

82Ms Colvin said that she returned home. Ms Jackson called her to “ask if I knew.” Up until this meeting at Darlene’s house, Ms Colvin did not know of the incidents involving Ms Jackson, but she was aware of “what had happened” to “Christen, Wendy, and Dale,” since the latter three women had confided in her themselves. Ms Colvin’s reaction was clear: “I’d had enough of this bullshit and called the cops.”

83Ms Colvin referred to her police statement, dated August 31, 2001, entered as Exhibit 4. She did not work at the store after she gave her police statement. Shortly thereafter, she testified that Mr. Gillies was arrested and charged with sexually assaulting her. She attended the court case, and testified against Mr. Gillies, who was found guilty as charged.

84Ms Colvin identified Mr. Gillies’ conviction, dated September 1, 2001, entered as Exhibit 5. It states that “Douglas Gillies of the Township of Atikokan, during the month of March, 2001, at the Township of Atikokan, did commit a sexual assault on Corrine Colvin, contrary to Section 271 of the Criminal Code.” Mr. Gillies had plead “not guilty,” but was found guilty and put on probation for one year and sentenced to “CSO 90 days,” meaning three months house arrest.

Ms Colvin's Stress Leave

85After she pressed charges against Mr. Gillies, Ms Colvin went on stress leave through Employment Insurance. The situation at Hillcrest Variety had taken a toll on her. She testified that her family doctor had seen her several times, and offered her anti-depressants, but she had two small children and declined them.

86During her testimony about her stress leave, Ms Colvin surprised Commission counsel by advising the Tribunal that she could obtain her doctor’s clinical notes and records. The Respondents objected to the introduction of new evidence, which was not part of the Commission’s disclosure package. The Tribunal allowed these notes to be entered, referring to the specific passages of the Statement of Facts and Issues that referred to her sick leave and her claim for damages for mental anguish, thus putting them on notice of the claim. However, the Tribunal also held that the Respondents could ask all the questions they wanted on those clinical notes and records, and could seek an adjournment to prepare those additional questions if they so wished. When Ms Colvin’s clinical notes and records were produced to the Respondents, the Tribunal ruled that such evidence could be introduced on the next hearing day, to give the Respondents time to prepare their questions on these three pages of new evidence.

87The following day, Ms Colvin identified the Medical Certificate filed with Human Resources Development Canada, signed by her then family physician, Dr. W. Lau, and entered as part of Exhibit 8, which identified her as suffering from “incapacity” from August 30, 2001 to October 30, 2001, due to “+ + + work-related stress.”

88Ms Colvin’s clinical notes and records from the community medical clinic she attends were entered along with the Medical Certificate as Exhibit 8. The physician she saw in 2001 is no longer at the clinic, so Ms Colvin identified these notes. There were entries in these clinical notes, dated August 31, 2001, September 5, 2001, October 23, 2001, and December 21, 2001, which identified the sexual harassment, sexual assault, verbal comments, the pressing of charges, and resulting lack of “mood,” identified with downward arrows beside the words “sleep,” “energy” and “appetite.” She described to her physician feelings of nervousness, and stress, which included “harassing her at house, slandering her (police aware).” The August 31, 2001 entry indicates that she was instructed to have a follow-up in Emergency if her stress level went up. She said her doctor made that note because he thought she might need sleeping pills and anti-depressants but she had refused to take them. The October 23, 2001 entry indicates that she required a further doctor’s note for leave from work, until December 29th, because she was described as “depressed, some difficulties with sleep, discussed avoidances (caffeine/TV etc.) and no thoughts of self harm.” She was directed to resume work on December 30, 2001, as per the last entry in the doctor’s notes.

89When asked how these events have impacted her, she testified that she does not go out as much as she did. She testified that she stayed at home for about one month as a result of the stress. There were no other sources of significant stress in her life. As she states, “In a small town, everyone is talking about you, so I stay home more than I usually did.” Since these events, she finds herself “holding back more” when talking to people. She added that it created “a bit of strain” within her marriage, because she did not feel comfortable talking to her husband, and found herself in arguments with him. In her next employment situation, she had male workers reporting to her. She said, “I did my job and they did theirs. I didn’t associate with them.” She has no male friends.

90During her cross-examination, she was asked some pointed questions about a number of questionable business practices in which she is directly involved.

91She was also asked if she recalled what she said to the bookkeeper about not being paid for the Christmas 2000 holidays, and Ms Colvin replied, “I told her I’d called the Labour Board about not getting paid for Christmas and Boxing Day, and I told you that myself.”

92During cross-examination, Ms Colvin said that her husband and brother-in-law work for Atikokan Wholesale, which the Respondents maintain is attached to their large competitor, Food Land. Ms Colvin did not dispute this statement, although the nature of the business relationship, if any, between Atikokan Wholesale, Food Land, and Mr. McQuarrie was never established. When asked in cross-examination, Ms Colvin testified that she could not recall when Mr. McQuarrie was let go from Food Land. She did agree that she had been friends with Mr. McQuarrie for sometime. Ms Gillies was attempting to establish that Mr. McQuarrie did not yet work at Hillcrest Variety when Ms Colvin says she spoke to him about the incidents in the store, as her manager. When the Tribunal asked if anyone would be calling him to testify, the Respondents said he was in the Caymen Islands and unavailable.

Nicole Thivierge

93Ms Thivierge is a twenty-two year old woman, in her second year at Lakehead University in Thunder Bay. Her nicknames include “Nicki” and at school, her friends call her “Knickers.” She grew up in Atikokan and has always lived there, other than going to school for her studies. She was hired by Ms Gillies and worked three to four days per week at Hillcrest Variety from June 2001 until early September 2001. Her duties included: restocking shelves; working primarily in the chicken take-out section of the store; cooking chicken; making sundaes, milkshakes, and ice-cream cones.

94She testified that she saw Mr. Gillies at work, almost every day. She was afraid of him, and “kept conversations short and sweet and to the point” and returned to her duties immediately. She described him as being, “almost sickly sweet”, and quoted him as saying, “’How are you doing little lady?’” She had her “guard up at all times” around him. During cross-examination, she said that Ms Jackson had warned her to be careful around Mr. Gillies, but that she had her own “warning signs.”

Incident in the Chicken Take-Out Section

95Ms Thivierge testified that she was putting some chicken in to a heating case, at approximately 7:20 p.m., when she heard a voice behind her saying, “Hey there, little lady,” and she felt Mr. Gillies’ hands on her hips. She spun around, out of his grasp, and moved back. She answered his questions quickly and left the chicken take-out area for the main part of the store. She said she felt safer working where the other female employee could see her. However, during cross-examination, Ms Thivierge testified that Mr. Gillies did not refer to her as a “hot one” during this incident, as suggested by Ms Jackson in her testimony.

96Ms Thiveirge said that a “red flag went up, and that she was “scared crapless.” She described herself as feeling “violated” and “really scared.” She was “shaken up the rest of the night,” and many friends went to visit her out of concern.

97At her request, the other employee stayed with her in the main part of the store. Her father came to pick her up from work that evening. She is uncertain who telephoned her parents. She testified that her grandmother and Ms Jackson both came by the store to check on her, and Ms Jackson asked if she wanted to pursue charges against Mr. Gillies.

98She was scheduled to work the Saturday shift, and went in as scheduled. She said it was “very tense” between herself and Ms Gillies, because she had already been to the police station with a few other women. Her next shift was on Monday or Tuesday, and she telephoned the store on the following Monday, spoke to a male employee who worked in the meat department, and resigned, stating, “I’m not coming in, I quit.”

99Ms Thiveirge testified that shortly after this incident, she spoke to the police and to the Commission. At the time of this hearing, she had no outstanding Complaints against Mr. Gillies at the Commission, and was testifying on behalf of the two Complainants in this matter, with no personal financial interest in the outcome. Her criminal charges against Mr. Gillies had been dismissed.

Wendy Happy

100Ms Happy is a twenty-eight year old woman, who is single and has two children. She has been a resident of Atikokan her whole life. She was hired by Ms Gillies, and worked at Hillcrest Valley for eight months in 2000. She was hired by Ms Gillies, to stock shelves, handle the produce, work as a cashier, clean up, unload freight, and perform janitorial duties. She worked full-time, and her rate of pay was $7.00 or $7.10 per hour. During cross-examination, she said that she went to Ms Gillies for her paycheques and other employment matters.

101Ms Happy testified that she saw Mr. Gillies about four times per week, but that she avoided having interactions with him. Her initial impression of him was non-descript, but she did find “later on” that he made “gestures” and remarks, such as, “you’re cute,” and “I like the way you’re dressed today.” From then on, “he made sexual comments all the time,” which she clarified to mean compliments about her appearance, and referred to her as “sweetie” or “hun.”

102Ms Happy said that he touched her inappropriately on two different occasions, and testified that he is a “pig.”

Unloading Incident

103The first incident occurred when Ms Happy was unloading freight into the diary cooler in the back freezer. Mr. Gillies was checking the boxes off. Moving towards her with her back to him, he reached around her and put both his hands under her breast-bone, directly below her breasts. She said she was shocked, and added, “I had a scary feeling – I was not expecting that.” She thought this was his idea “of getting a cheap thrill.” She said she felt “sad”, because, “he had plenty of room to walk past me without having to put his hands on me, period.”

104She testified that Ms Gillies and their two daughters were in the store at the time of this incident, but that she did not tell them what had happened. She told her ex-fiancé when she went home. He suggested to her that she “be aware” of Mr. Gillies. She did, however, “tell the girls I worked with” and “my sister because she worked there, too.”

Candy Shelf Incident

105Ms Happy testified that about a month after the first incident, the second incident occurred by the candy shelf, during the evening shift, between 4 and 6 p.m., while trucks were being unloaded. Ms Happy said she began her shift at 4 p.m. and that Ms Colvin began her shift at 6 p.m. Mr. Gillies was fixing the slushie machine, and she was in the candy area, stocking up the shelves. He approached her from behind, and grabbed her by her hips and pulled her into his groin. He then told her to “watch yourself” and walked away. She still does not understand this comment in context.

106She immediately began to cry. She felt that “he was getting another cheap thrill.” During this testimony, she burst into tears. She said, “I was afraid, and didn’t say anything to him. I couldn’t, I froze.”

107Ms Happy walked to the cashier. She saw Ms Colvin, and told her that she needed to go home. Ms Colvin told her to finish her shift, because she was in the store, and so Ms Happy “would be fine.” During cross-examination, Ms Happy said that Ms Colvin was at the cash register was about six feet away from where she was shelving candy at the candy counter, and that there was a card rack in between them. She also stated that if she had turned around to ask Ms Colvin a question, she was close enough to her that she would have heard her.

108During cross-examination, Ms Gillies attempted to show that Ms Happy “can’t tell the difference” between the two alleged incidents, and to impeach her credibility by asking her why she could not recall who was at the till during the criminal trial.

109Ms Happy had confided in Connie and her ex-fiancé about this incident. Her ex-fiancé told her that he wanted to kill him. She was afraid of telling Ms Gillies what had happened. She felt that she would “freak out on me” if she had told her. About three weeks after the incident, she went to see her doctor and told him of the situation. He told her not to go back. He told her it was sexual assault in the workplace, and abusive, and that she did not need to go back there. He had said it was not healthy for her, and put her on EI sick benefits. She had no further encounters with Mr. Gillies at work.

Nightclub Incident

110Prior to the two incidents at work, Ms Happy said she and two other girlfriends had gone to a nightclub, and Mr. Gillies approached their table and asked her to dance. She said it “was obvious that he had been drinking.” She replied, “No thanks.” He kept asking, and when the theme song from the Discovery Channel was playing, he said, “I want you to get up on the dance floor and move like a mammal with me.” She interpreted this comment to mean, “Let’s screw like animals on the Discovery Channel.” Again, she said, “No thanks.” When he persisted, one of her girlfriends said, “She said no thank you.” At this point, Mr. Gillies daughter Becky, who was in the nightclub with her own friends, told him to leave her alone. His daughter said, “Dad, she doesn’t want to dance with you.”

111In terms of these three incidents, she said Mr. Gillies had been drinking at the nightclub, but there was no indication that he had been drinking during the two incidents at work. On another occasion, she did see him drunk at the store, but it was otherwise without incident. She considers him to be “a disgusting downright pig.”

Her Stress Leave and Latter Contact with the Police

112Ms Happy left Hillcrest Variety and went on stress leave. She has never returned to work there.

113She did not speak to the police until July, five months later. They approached her, and she agreed to testify in court. She also filed a charge against Mr. Gillies. He was arrested and taken to jail out of town. A restraining order was made against him, which required him to stay away from her, and the others. The criminal trial of Mr. Gillies for the charge she laid against him was separate from Ms Colvin’s. Mr. Gillies was found not guilty of assaulting her.

Impact of these Events

114Ms Happy cried a great deal when she testified that, “I still have to walk these streets and people who are for him come down on me for it, like I did something wrong and I didn’t.” At this point, Ms Colvin and Ms Jackson both burst into tears. The Tribunal adjourned for five minutes to allow the witness to compose herself.

115During cross-examination, Ms Gillies sought to question Ms Happy about her hospitalization for stress and her personal life. Counsel for the Commission objected, stating that the line of questioning was irrelevant. The Tribunal asked her if there were other sources of stress in her life besides work, and she said “yes.” The Tribunal ruled that Ms Happy did not have to answer these specific questions, since she has no Complaint filed in her own right against the Respondents, and so her medical condition has no bearing, since she has no claim for mental anguish.

Incident During the Adjournment

116After the adjournment, both Complainants told the Tribunal that Mr. Gillies said something to them outside of the hearing room. The Tribunal advised him to refrain from having any communication with them.

Douglas Gillies

117Mr. Gillies is a fifty-four year old man, who testified that he has been married for twenty-eight years. Ms Gillies interrupted his testimony in this regard, to state that he “was wrong” about how long they had been married. He also testified that he has seven children, ranging in age from twenty-nine to eleven. He said that he mixes up his female children’s names, and so he refers to them as “dear” or “little lady.” He has been active with his children’s sports.

118Mr. Gillies said that he was in a serious accident at Pro Board, where he worked on January 17, 2000, when he was overcome with carbon monoxide fumes and landed on his head on a cement floor. He spent time at the local hospital in Atikokan, and then went for further treatment in Thunder Bay and Toronto. He said his treatment in Toronto lasted six to seven weeks, and involved visits with neurologists. He was seen by a psychiatrist who tested him, and said that she found he now suffers from a seventeen percent cognitive disability and a nineteen percent physical disability, as a result of this accident.

119He returned to Pro Board for a short period after the accident, but left Pro Board on March 5, 2001. He said that he had worked at Pro Board for six years. He left Pro Board, because he had had another slip and fall accident. He saw his doctor, who told him he could not return to work. He said he went home and took some painkillers.

120Mr. Gillies testified that he is a truck and coach mechanic and a heavy equipment mechanic, and that they are now referred to as automotive technicians. He also has a propane inspector’s licence and an installer’s licence.

121He testified that he had had a prior career at Texaco, and used $40,000 he had saved from that position to purchase a lot and a building. The building had been previously used as a laboratory, and he rebuilt it to use the steel frame for the store. He said that he had also gone away to work on the pipelines, to save another $90,000, to use for the store, and the purchase of equipment for it, such as coolers, freezers and compressors, much of which he has repaired himself. He said that the business was “struggling.”

122With respect to Ms Colvin, he denies touching her. Mr. Gillies testified that he cannot recall what dates he was in Toronto for medical treatment, but added, “I think I came back in April sometime.” Later on in his testimony, he said he could not recall where he was in March or April 2000, because it was “four or five months after the accident.”

Prior Convictions

123He said that when he was twenty-three years old, he attended a stag for a friend, and “ended up driving uptown and picked up a young lady”, saying “I kinda knew her.” He testified that “I didn’t have sex with her,” but then said, “it was a mutual thing,” and “I’d had too much to drink and she was a lot younger than I thought.” However, during cross-examination, he said, “I had been smoking up some weed at the stag.” He admitted that he was charged with “attempted sexual intercourse with someone under sixteen years old.” He denied that he was charged with sexual interference with a minor. He said he pled guilty, and the sentence was three months of incarceration at Fort Francis, and that he was released after two months.

124During cross-examination, he was asked if he had been charged with and convicted of possession of marijuana when he was twenty-four. He said he could not recall.

125Other than these admissions by Mr. Gillies, no evidence was entered to establish the exact nature of the prior convictions.

Apricot Incident

126Mr. Gillies testified that he was concerned about shrinkage at the store, and “couldn’t figure out why Barb wanted to make jam.” He said that he and his spouse were returning from their daughter Erica’s wedding, when they drove to the store to pick up a meat tray, and entered the store through the back door. He said that Ms Jackson was standing in the middle of the aisle, “looking at me.” He added, “I probably had had a fair number of drinks and was in a happy, forgiving mood. I figured she was mad about the apricot deal. I went up to her and said I’m sorry Barb and gave her a hug liked you’d give your mother or people at church, and went back to the reception.”

127He denied ever trying to kiss Ms Jackson. He said, “She should’ve been at the till, not in the aisle.” During his cross-examination, counsel for the Commission asked him if he recalled making a statement to the Commission’s investigator that he had “hugged and kissed Barb.” He replied he could not recall saying that, and added, “I gave Barb a hug but didn’t kiss her.”

Meaning of "Sassy"

128Mr. Gillies said that he told Ms Jackson, “You are a saucy one”, because of her demeanour towards him when he asked her if she knew where his wife was, and she said, “No” and “she was glaring at me.” By referring to her specifically as “saucy” rather than “sassy,” he testified that he meant “overly bold” and “insubordinate” when he said it to her. He said that “saucy” is an Old English word, although he acknowledges that the two words mean the same thing. He denied touching her and seemed surprised by the allegation. He said, “I asked the potato chip fellow about it, and he told me that he has no knowledge of it whatsoever.”

129During cross-examination, he testified that he told the Commission’s investigator that he likes women who are “sassy,” and who have “an attitude,” which he compared to his wife’s demeanour.

The First Truck Unloading Incident: "Rubber Arms"

130Mr. Gillies testified that Ms Colvin made a comment about “rubber arms” while unloading produce with him during the night shift. He said there was a small aisle between the produce cooler and the meat display. Ms Colvin said to him, “Holy cow, my arms are like rubber.” He said that he replied, “The girls these days have silicon breasts and rubber arms” as “kinda a joke.”

131He said that, “Corrine always says all sorts of outrageous things” and that this was “the only time I talked to her and replied to what she said.” He testified that Ms Colvin had told him that she and her husband “went to Vegas for their honeymoon and saw a little sex show.”

The "Drill a Hole" Incident

132Mr. Gillies testified that he was outside of the store working on a fitting for a pressure gauge, when Ms Colvin “came bounding out of the store and demanded I take the garbage out. I said, ‘I don’t have time right now, I’m digging or filling a hole.’ I meant I was working on machinery.” He denies making any motions or gestures when providing this response to her request.

133He then noted that all of Ms Colvin’s complaints are “quite old” and “I surmise she made up a complaint” about the “garbage to have a current complaint for Human Rights.”

134During cross-examination, when asked if he told the Commission’s investigator that he never grabbed Ms Colvin and thought she was a “filthy-mouthed liar and uglier than sin,” he said he could not recall saying it.

His Evidence Regarding Ms Happy

135Mr. Gillies testified that he never worked a “truck night” with Ms Happy. He admitted that he touched her once when he was in the backroom, by the meat cooler, and she was in the aisle, “in the way.” He said, “I touched her on the small of the back to separate us. I quite intentionally touched her back so nothing else would touch.” He added, “She chose to stand in a narrow alleyway and she must have known I was in the cooler. I surmise that she was standing there on purpose, it was a set-up – she was trying to create a scenario.”

Candy Shelf Incident

136Mr. Gillies testified that there is forty-five inches between the candy shelf and the till. Again, he said that Ms Happy bumped into him in this incident. He testified that, “I was just walking along, checking out the temperature of the freezers. She testified that she knew I was there. There was enough room for me to walk by her at a normal gate. Just as I was about to pass her, she jumped up, stuck her butt out, and she hit me in the hip and ploughed over the greeting cardstand that’s there. I said, “watch it’ or something like that, because my back wasn’t in great condition.”

His Evidence Regarding Ms Thivierge

137Mr. Gillies testified that there were two incidents and “she has mixed them together somehow.” He said that Ms Thivierge was “standing there, making subs,” and “I just walked behind her, same as I did with Wendy.”

138Mr. Gillies said that, “sometime later, she seemed to incorporate it into one time.” She was putting chicken on display, and he said to her, “Hello little lady” because she would not know he was standing there. He denies touching her. He said that he just took out a drumstick to eat, and asked her how “it was going tonight” and “away I went.”

139Mr. Gillies testified that “her account of things” was “fairly accurate,” “other than I don’t know why she has had the two accidents mixed up.”

Incident with Another Female Employee

140During cross-examination, Mr. Gillies admitted that he told the Commission’s investigator about an incident with another female employee, named Dale. He said that he had asked “an employee for a hug, it was nothing sexual.”

His Evidence Regarding Ms Jackson

141Mr. Gillies made it clear that Ms Jackson was the instigator behind all of these allegations. He said there has been “no trouble since Barb left – the store runs much smoother. Everyone is happy.” He added that there has been less turnover since Ms Jackson left Hillcrest Variety.

142He testified that at first, Ms Jackson wanted to be his friend, and that she had been “fairly pleasant to have around.” He said he felt burdened by her, saying, “She always wanted to talk to me. I didn’t have time to stand up and converse. Can’t afford to pay people for that.” He also said that on two separate occasions, Ms Jackson had offered to manage the store so he could go home to his children.

Cub Camp Trip

143Mr. Gillies said that Ms Jackson had worked with them about a year when she convinced him to go away with her and two boys to a jamboree. He testified that during the trip she told him, “I was the only girl in my family who didn’t have to get married.” He said that when he heard this comment, “Red flags went up. I said, ‘Oh yeah, that happens.’ He said she added, “I wasn’t always a goody goody,” and that he did not reply. He said that during this trip, they washed dishes together, without incident.

144During cross-examination, he confirmed that he told the investigator of his views of Ms Jackson, specifically that he said, “I’m going to sue her. This Women’s Lib has got out of control.” During his testimony, he said that he still felt this way, adding, that he felt that Ms Jackson’s study of a “psychology course” and “Women’s Lib” caused her to lead a conspiracy against him. When asked if he has sued Ms Jackson, he replied, “Not yet.”

Complaint to Children and Family Services

145Mr. Gillies testified that Children and Family Services called him and asked him if he drank at home, and he said “No, I never drink at home.” They also asked him if he and Ms Gillies argue, and he said periodically, due to the “extreme amount of stress over the store.” They also interviewed his children. He said that the outcome of their investigation was that he received a letter from them that the complaint was unfounded and that the case was closed.

His Role in the Business

146Mr. Gillies summed up his testimony in chief by stating that, “I had very little to do with the girls,” and added that he does not make any hiring or firing decisions, and has not given Ms Gillies any input on the purchases of major appliances for the store, such as the “$50,000 chicken cooler.” He summarized his role as “I make sure the freezers are freezing, and I make the coffee.”

Issues with Lawyer, Competitor, Township, Local Police Department, Judge

147Mr. Gillies admitted to telling the Commission’s investigator that he had been in a conflict with the lawyer who acted for him concerning his property, and felt that this lawyer acted improperly and was in a position of conflict of interest between him and the Township. He testified that this lawyer was “stealing for himself or the Township” by “transferring property to the Township without notifying me” and would like to pursue it, but “can’t afford to do something about it.”

148He also stated that he lacks faith in the Atikokan Police, having told the Commission’s investigator that, “our local police is a problem.” In his testimony, he said that it would be more economical for the residents and businesses of Atikokan to have the Ontario Provincial Police as their police force. He said, “I might have stirred it up” to save on his taxes. During cross-examination, he said that one of his issues with the local police stemmed from his probation order that he receive counselling, and his reluctance to attend, since it is the centre where Ms Jackson now works.

149When asked during cross-examination about the statement he made regarding his criminal conviction for sexual assault of Ms Colvin, he admitted that he had told the Commission’s investigator that he was convicted by the judge because “I was on painkillers, Paxil, and didn’t dress up like a drug dealer.” He felt that the lawyer who acted for him was “incompetent” and a “drunk.” He also thought he was convicted because the judge did not believe the testimony of Ray McQuarrie, “because his job depended on it,” even though, “Ray was not at the store at the time” because Mr. McQuarrie had “given notice he was going to the Caymen Islands.”

150When asked by Commission counsel if he felt that everyone was out to get him, he replied, “I think my rights have been badly violated.”

151When the Tribunal asked him if he believed that the Complainants have conspired against him, he said he did. When asked why, he said it was his “firm intuition based on everything I’ve been able to observe, going back to building the store.” When he began building the store, someone “called the Department of Labour,” and an unidentified person suggested to Mr. Gillies that he has a competitor in town. He felt it was a conflict of interest that Ms Colvin’s spouse went to work at his competitor’s store. However, he admits that Ms Colvin and Ms Jackson did not like one another while they were both his employees. He said, “I don’t know why Barb feels and has acted the way she has. It is a different reason than Corrine’s, but the same outcome would make them both happy for different reasons.”

152Mr. Gillies believes that the Complainants would “like me to be found guilty of all the things they have embellished. They exaggerate. Their stories are completely embellished and some are down right incorrect.”

Mr. Gillies' Depression

153Mr. Gillies testified that he has been on the anti-depressant, Paxil, for approximately three-and-a-half to four years. He said that these allegations have caused him great stress and worsened his depression.

Doctor's Note for Mary Gillies

154On the morning of February 4, 2004, when Ms Gillies was scheduled to testify, her spouse gave the Tribunal a handwritten note from a local doctor, Dr. L. Burechato, dated February 3, 2004, on stationary from Atikokan Medical Associates, entered as Exhibit 9. The note states as follows:

To Whom It May Concern:

For medical reasons, Ms Gillies will be unable to attend the tribunal Feb 4-6th inclusive. Please postpone the hearings if possible in consideration of her health problems and incapacity to appear. Thank you.

Dr. L. Burechato

155The Tribunal asked Mr. Gillies about his spouse’s sudden medical ailment. He answered, that she had returned to the store after yesterday’s hearing, and left there to go to the hospital. He said, “I never talked to her too much about it, she came home and went to bed. She’s still sleeping, she was given something to get through the night.” He added that he thought she was having “a small nervous breakdown” and was “on pills.” The Tribunal ruled that this was an informal motion brought by the Respondents seeking an adjournment of the proceeding, and asked for the other parties to make submissions.

156Counsel for the Commission objected to any adjournment, based on such a briefly worded medical note. He described it as “all too convenient,” “not worth the paper it’s written on,” and added that he was dubious about Mr. Gillies lack of knowledge of the illness. He asked that the doctor who wrote the note be subpoenaed to testify as to the diagnosis made.

157Mr. Gillies said that his spouse’s stress was caused by the Tribunal’s ruling that they could not enter their documents into evidence. The Tribunal reminded Mr. Gillies of all the correspondence they had received from the Registrar, along with the Tribunal’s Interim Decision, and the extensions of time they had already been given, to file pleadings and make disclosure, and that they had failed to do so.

158Ms Colvin and Ms Jackson objected to an adjournment. They each tearfully spoke of the tremendous stress that this hearing process had caused them, and time lost from work to attend. Both said that they could have asked their doctors’ for notes to excuse them from the hearing, due to their stress levels, but chose not to do so.

159After hearing from all the parties, the Tribunal made an oral ruling pursuant to Rule 68 as follows:

On hearing the motion for adjournment brought by Mr. Gillies on behalf of Ms Gillies for health reasons, and on reviewing the doctor’s note provided, and hearing submissions from Mr. Taylor, Ms Colvin and Ms Jackson, I have issued a summons for the doctor, and she is appearing to give evidence about her diagnosis and her medical condition.

The Tribunal had ordered a brief adjournment to allow for Dr. Burechato’s arrival at the hearing.

160Before Dr. Burechato arrived, an independent eyewitness, Deborah Ann MacDougall, came on the scene to testify as to the whereabouts of Ms Gillies. Ms MacDougall is the local Pepsi-Cola salesperson, and she recognized the Complainants while conducting her business vis-à-vis the Pepsi machine at the White Otter Inn.

161During the adjournment, counsel for the Commission realized that Ms MacDougall had seen Ms Gillies in her office that morning, and asked her if she would testify under oath as an independent witness to the motion for an adjournment. She agreed to do so.

162In her sworn testimony, she said that her role was to pre-sell Pepsi products. She had attended at Hillcrest Variety, a customer of hers, at approximately 11 a.m. on the morning of February 4, 2004, and spoke to Ms Gillies, who was upstairs in her office talking to her bookkeeper. She testified that she speaks to Ms Gillies every week, to “talk and see what is on special, and to confirm her order with her.”

163Ms MacDougall said that she said “hi” to Ms Gillies that morning, and that they had an ordinary conversation that lasted two to three minutes. During that conversation,Ms Gillies had asked, “Where’s my sweatshirt?” She also asked about her “Pepsi jacket.” These garments are marketing incentives that Ms MacDougall had previously offered her.

Sudden Appearance of Mary Gillies

164Ms Gillies suddenly appeared at the hearing, and demanded the right to testify. At that time, Dr. Burechato had arrived, and so the Tribunal heard from Dr. Burechato first.

Evidence of Dr. Burechato

165Dr. Burechato testified that she had seen Ms Gillies at 9:30 p.m. on the night of February 3, 2004, in the Emergency Room at the Atikokan General Hospital. She is a family physician, and had been on duty that night. She said she spent about half an hour with her, during which time, she relayed her worsening function over the last week.

166She said that Ms Gillies is having difficulty coping with her responsibilities, and the ongoing nature of the hearing. She had described her husband’s involvement with the Tribunal, that he suffered from a mild injury, and that she had organizational issues, including sixteen-hour work days.

167Dr. Burechato said that Ms Gillies felt anxious and stressed, and had not slept for three days and was suffering from poor concentration. She described herself as “losing it,” and Dr. Burechato’s observations were that Ms Gillies was tremulous and tearful, but suffered no psychosis nor delusions. She described her as having “low affect,” which she said meant that she looked sad. She said that her thought process was normal, and that this was a situational crisis. Dr. Burechato diagnosed her as having “acute stress disorder.”

168Dr. Burechato’s recommendation for treatment was to remove patients from stressful circumstances. She thought Ms Gillies should postpone the hearing so that she could re-engage in a proper sleep/wake cycle. She prescribed her with Lorazapan, and gave her ten tablets, along with two from the Emergency Department. This drug is for anxiety and it induces sleep.

169The Tribunal described the tearful emotional state of the Complainants to Dr. Burechato, and asked if knowing the stress they were under would change her recommendation to postpone the hearing on the merits. She replied that it did not.

170The Tribunal thanked Dr. Burechato and released her from the subpoena.

Mary Gillies

171Ms Gillies was very forceful in her insistence that she be allowed to testify, even though the Tribunal informed her that it had not yet ruled on their motion for an adjournment. However, the Tribunal acceded to her wishes, and enquired if she wanted to be asked questions by Mr. Gillies, or to provide her evidence in narrative form. She chose the latter. She insisted on swearing herself in, which the Tribunal permitted her to do.

172Ms Gillies testified that all of this started because “Barb was upset, and lying about Doug to Nicole.” She said that Ms Jackson told “all sorts of untruths” and that Ms Colvin was only interested in money.

173Ms Gillies testified that Ms Colvin had to change the date of part of her Complaint, from 2001 to 2000, because just prior to the court appearance, Ms Happy’s best friend realized from talking to Ms Gillies that Mr. Gillies could not have been in the store at the time of the alleged incident, because he was in Toronto receiving treatment for his injury.

174She said, “they lie.” She accused Ms Jackson of lying during the hearing, as revenge for her refusal to give them paid Christmas holidays. She testified that she had overheard Ms Colvin saying that they could make money from this.

175Ms Gillies said that she could not stand to sit through the hearing and listen to them “lie through their teeth.” She said that she had to go to her store that morning, because she had an issue with Nancy Jordan and had to make a phone call because of tax issues. She yelled, “There is nothing wrong with that.” Then she yelled, “I am done, I am done,” forcibly threw the Bible, and walked out of the hearing.

176The Tribunal cautioned her not to walk out before being cross-examined. Nevertheless, she said, “I don’t care if you put me in jail, I’m done” and she left the hearing.

177Mr. Gillies then brought a motion seeking to call the secretary from the store to prove that she had given Ms Gillies a ride to the drugstore that morning to pick up her prescription. The Tribunal ruled that after having heard the evidence of the doctor, it was not necessary to hear from their secretary to corroborate the prescription, since the Tribunal accepted that evidence regarding the medication.

178The Tribunal noted that a witness is normally subject to cross-examination. Counsel for the Commission said that her refusal to stay was a denial of natural justice and without an ability to cross-examine her, or a waiver of it, then her direct evidence should not be admitted. However, he noted it was unusual, since the Tribunal had already heard it, and suggested that under the circumstances, it carries no weight.

179Mr. Gillies offered that it was unfortunate, because other “bits of information would have been available.” Mr. Taylor objected to this, and said she had closed her case.

180After hearing from the parties, the Tribunal held that out of an abundance of caution and in the interests of natural justice, the matter was adjourned, at mid-day, for the afternoon, and would be reconvened the next day at 10 a.m. The Tribunal directed Mr. Gillies to ensure that Ms Gillies appeared the next day for her cross-examination, or there would be serious consequences to their case.

181The hearing resumed on February 5, 2004, and Ms Gillies appeared. She stated that she “returned under duress,” which the Tribunal advised her had been noted.

182With respect to the Respondent’s motion for an adjournment, the Tribunal made the following ruling:

The Tribunal finds that Ms Gillies waived her own motion for an adjournment due to an illness, when she appeared unexpected by yesterday and demanded the right to testify. I make this finding in accordance with the Tribunal’s Rules and s.4 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.

183Ms Gillies then asked for the proceeding to be taped. The Tribunal explained Practice Direction #2 within its Rules of Practice, which had already been explained during the pre-hearing conference call, and advised her that it is up to the parties to obtain their own transcript service at their own expense.

184Before Ms Gillies was cross-examined by counsel for the Commission, she stated that there had been an inconsistency between Ms Jackson’s testimony of what Ms Thivierge said, and what Ms Thivierge had actually said. She asked the Tribunal: “Who do I go to regarding the perjury?” Then she asked if the Tribunal “even knows” the answer. The Tribunal explained that it was taking detailed notes and would carefully consider all evidence before it, the credibility of each witness, any inconsistencies of evidence, and would make findings of fact and then findings of law. The Tribunal advised Ms Gillies that it was premature to have this discussion, and that she needed to be cross-examined by counsel for the Commission.

185During her cross-examination, Ms Gillies testified that Hillcrest Variety is not a viable business, and that it is losing money and has been doing so since it started. She said that it has never made a profit. She said that according to their 2000 income tax returns, she lost $70,000 that year. She said that the property itself is in both her name and Mr. Gillies’ name, and that there are “liens on it from the Town of Atikokan, Revenue Canada, and the Business Development Bank.” She has been paying her suppliers “very minimal” amounts, in cash, in order to complete transactions of stock.

186Ms Gillies testified that Hillcrest Variety is not incorporated, but is “just a partnership.” She said, “Doug and I are the co-owners” of it.

187In terms of their vehicles, she said that the yellow truck is in her name, but that it is subject to a bank loan and a lien through Revenue Canada. There is a second car leased in her name, on which she makes monthly payments. There is also a red truck, which is a GMC 2002, which is leased by Hillcrest Variety “for the use of Ray.” She described some other vehicles that are not in good working order, that Mr. Gillies keeps because he is “a mechanic and a collector of junk.”

188In terms of their personal property, she testified that their home is “in both of our names,” but it is also subject to a lien from Revenue Canada. She also owns four one-suite apartments, located at 508 Mackenzie, Atikokan, and said that she “doesn’t know” who owns them, but then added, it “could be me and Doug,” but that the bank has a mortgage on them, as well.

189Ms Gillies identified Hillcrest Variety’s Employee Contact List, dated July 17, 2002, which was entered as Exhibit 10.

190Counsel for the Commission listed all the correspondence between the Tribunal and the parties, and the participation of all parties in the initial conference call and the pre-hearing conference call, and asked if she could recall having agreed to all the dates set for the exchange of pleadings and disclosure. She testified that she could not recall the exact dates, but “accepted” the dates proffered by him as accurate. She said that she has a pile of paper, which she demonstrated as being two feet high, from this matter. She responded, “ I didn’t do it, because I didn’t have time. Do you want to know what my life is?” When asked if she recalled that the Tribunal gave her one more chance to make disclosure during the pre-hearing conference call, and explained what that meant, she said, “Yes, I did nothing because I did not have time.”

191Ms Gillies testified that she attempted to contact Ms Jackson and Ms Colvin on the day that Mr. Gillies was arrested, being August 30, 2001, which was their anniversary, and “Barb knew that, too-strange.” She said she attempted to contact them because, “They hadn’t said anything, verbalized nothing to me. I was in total shock.” When asked if she had tried to enter any of the vehicles belonging to Ms Colvin, or Ms Christen Happy, she responded, “I could have – I don’t know.” When asked if a police officer attended at the scene and found her in one of the vehicles, she said, “I don’t recall.” She also called Ms Jackson’s home, and spoke with her husband, and asked him if he knew what was going on and that she would like to speak to Ms Jackson. However, she subsequently saw Ms Jackson in the store “a couple of times,” but “I didn’t say nothing to her.” She added, “I don’t make eyes, but she’s good at it.”

192Ms Gillies said that their defence is that Ms Colvin and Ms Jackson have “taken some incidents and some comments,” “bits of fact” and “added to them.” She gave the “rubber arms” incident with Ms Colvin as an example of something that Mr. Gillies had said, but testified that Ms Colvin embellished the rest of the story.

193Ms Gillies testified on behalf of Hillcrest Variety that there is a conspiracy involved in this matter. She said, “If they weren’t out to get me, they would have told me. I’m not stupid. If they’d have told me, I would’ve done something about it.”

The Respondents' Written Submissions

194Ms Gillies reiterated the Respondents’ view that Ms Colvin lied and that her own dishonesty is the cause of her stress. She states, “The only reason she is stressed is because she knows that she is going to get caught in a lie. She has told so many she can’t remember which lie she told when, so that’s why she is stressed out…”

195The Respondents also allege that counsel for the Commission suborned perjury. They wrote:

She lied about telling Ray McQuarrie. His employment record verifies that he didn’t start work at Hillcrest until May 28, 2001 and in his statement to Human Rights and in court Ray verified that nobody said anything like that to him. Mr. Taylor suggested Corrine LIE UNDER OATH and say she could have told him at home. What good would it have done if Ray did not even work at the store then. But in the court transcript Corrine says “Ray, Ray McQuarrie the manager of the store and chicken” How could he do something about it if he didn’t work there. Bill Devine worked in March and April of 2001. Mr. Taylor should not be setting Corrine up to tell a lie under oath. [Their emphasis.]

196The Respondents also submitted that Ms Jackson and Ms Happy lied as well.

197The Respondents state that Mr. Gillies “did not hold any position of authority to confer, grant or deny a benefit or advancement,” and that Ms Gillies was “uninformed of a problem.” She states, “If a problem existed it would be the employees responsibility to inform me so that could be rectified.”

198The Respondents submit that Ms Gillies was treated unfairly during the course of the hearing with respect to her medical condition. They state, “Corrine must not only have a better lawyer but a better doctor. Corrine gets 16 weeks with pay and wants $24,000 but I get 24 hrs. Where are my human rights to equal treatment. All the Doctors should have been subpoenaed.”

The Commission's Written Reply

199Counsel for the Commission submits “there is absolutely no merit or worth” in the Respondents’ final submissions, and urges the Tribunal to “disregard them completely.”

200Counsel for the Commission expressed outrage at the suggestion that he suborned perjury, and requests that the Tribunal respond to “the assault on my integrity as an officer of the Court.”

FINDINGS OF FACT AND LAW

201After consideration of the testimony of all the witnesses, and the documentary evidence put before it, the Tribunal is satisfied that the Commission and the Complainants have established a prima facie case on the grounds claimed.

Summary of Findings

202The following is a summary of the Tribunal’s findings for each Complainant.

203With respect to Ms Jackson:

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

2. She was the subject of sexual solicitation and harassment in the workplace, contrary to ss.7(2) of the Code.

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

4. Hillcrest Variety was on notice of the infringements of the Code and failed to take proper steps to prevent it;

5. Hillcrest Variety is jointly and severally liable for the acts of the Personal Respondent, since he is a partner.

204With respect to Ms Colvin:

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

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

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

4. Hillcrest Variety was on notice of the infringements of the Code and failed to take proper steps to prevent it;

5. Hillcrest Variety is jointly and severally liable for the acts of the Personal Respondent, since he is a partner.

205Below the Tribunal expands on the reasons for these findings of fact and law.

The Credibility and Reliability of the Parties

206The outcome of this case largely hinges on the credibility and reliability of the parties, since the incidents of discrimination occurred without any eyewitnesses, although the Commission did call two other former employees, who offered what the Commission submits that the Tribunal should accept as “similar fact” evidence. In assessing the credibility of each of the parties, the Tribunal considered the test set in Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 at 357, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken.

207The Tribunal has examined each of the Complainants’ credibility, and is satisfied that their testimony is indeed in harmony with the circumstances of the case. The Tribunal accepts the evidence of the Complainants that they were indeed discriminated against by Mr. Gillies, despite his denials and his assertions that they have “lied,” or otherwise distorted or exaggerated these events. The only minor discrepancy that the Tribunal found in the evidence of the Complainants occurred when Ms Thivierge testified that Mr. Gillies had not referred to her as a “hot one,” contrary to the evidence of Ms Jackson, when he put his hands on her hips. The evidence given by both Ms Jackson and Ms Colvin regarding Mr. Gillies sexual harassment of Ms Thivierge was otherwise persuasive and credible, and consistent with Ms Thivierge’s own testimony.

208The Tribunal finds that both Ms Jackson and Ms Colvin were credible witnesses, and that each of them made several admissions against their own interest, whether that be Ms Colvin’s questionable business practices or her frequent use of obscene language in a conversational manner, to Ms Jackson’s obscene language, defiant “looks” and ongoing gossip about his criminal record at work.

209Each of the Complainants testified about their open and ongoing contempt for Mr. Gillies, in response to his sexual harassment. This evidence ranged from avoidance tactics to Ms Colvin telling him to “fuck right off and don’t ever touch me again” and Ms Jackson giving him the “look” and advising him that she “would not waste her breath on him.”

210The Tribunal finds that Mr. Gillies lacks credibility and his evidence is unreliable, for the reasons set out below.

211In terms of the lack of reliability of Mr. Gillies account, the Tribunal finds that, by his own admission, he was intoxicated during the Apricot Incident with Ms Jackson, which corroborates her testimony. Ms Jackson testified that he was also intoxicated during the “Sassy” Incident. Ms Colvin testified that when Mr. Gillies had been drinking, “he was kind of creepy,” and added, “you don’t know what to expect.” Similarly, Ms Colvin was sexually solicited and harassed by Mr. Gillies during the Incident at the Pub, where she found herself locking up the business and returning the store keys to the Gillies when it was not even her shift, only to be told, “How can you fuck if you’re tired? But I bet you can fuck anyway because you’re good in bed.” Ms Colvin was sexually harassed by him during the Second Truck Unloading Incident, after Mr. Gillies “had been drinking.” During Mr. Gillies testimony about his prior convictions, he admitted that he had consumed too much alcohol and had smoked marijuana prior to picking up a woman who was under age. The Nightclub Incident with Ms Happy occurred when he kept insisting that she dance with him despite her refusals, and the evidence of Ms Happy was that it “was obvious he had been drinking.” The Tribunal finds that Mr. Gillies has a pattern of intermittent binge drinking, and that his evidence, vis-à-vis Ms Jackson and Ms Colvin, is often unreliable because he was intoxicated at several key junctures in time.

212In terms of his credibility, the Tribunal finds that Mr. Gillies’ version of events, throughout his testimony, to be seriously flawed. It is only in instances where his evidence can be corroborated by credible witnesses is the Tribunal prepared to accept it. For instance, the Tribunal does not accept that his recollection of his prior criminal convictions is so poor that he cannot recall the name of the offence for which he served three months in jail, nor could he recall whether or not he had a previous conviction for possession of marijuana. The Tribunal finds that Mr. Gillies has chosen to forget critical information about his prior criminal record.

213Similarly, the Tribunal finds his testimony concerning his criminal conviction for sexual assault against Ms Colvin, which arose out of the same set of facts as her Complaint, to be implausible. The Tribunal rejects the notion that the judge in that case convicted him because “I was on painkillers, Paxil, and didn’t dress up like a drug dealer.” Nor does the Tribunal accept the accounting statement made by Mr. Gillies that the lawyer who acted for him during that trial was “incompetent” and a “drunk.”

214When Mr. Gillies sought an adjournment of the hearing for the balance of the week, due to his wife’s sudden illness, he advised the Tribunal that she was at home and in bed, having received medication “to get through the night.” She was not at home and in bed, having taken sleeping pills, but at their store, working, as established by the independent, eyewitness testimony of Ms MacDougall, the local Pepsi-Cola sales representative, for whom Hillcrest Variety is a client.

215During his testimony, and in the final submissions filed by the Respondents, it was clear that Mr. Gillies blames Ms Jackson for what has happened, citing her study of a “psychology course” and “Women’s Lib” as the underlying cause of the “conspiracy” against them. Based on all the evidence that the Tribunal heard, this “conspiracy” theory, which is the underpinning of their defence, is implausible and without merit.

216The Tribunal finds that much of the focus of Ms Gillies testimony and cross-examination was irrrelevant, because she was not present at key junctures in time when these incidents occurred between Mr. Gillies and the Complainants, and so she has no first-hand knowledge of them. Nevertheless, she interrupted and accused the Complainants and their witnesses of “perjury” and telling “lies” during their testimony, and repeated those accusations in the Respondents’ final submissions, as well as accusing Commission counsel of suborning perjury, “Mr. Taylor suggested Corrine LIE UNDER OATH.” There is no evidence before the Tribunal to substantiate any of the accusations that she makes about the Complainants, their witnesses, or Commission counsel.

217In their final written submissions, the Respondents argue that all the doctors ought to have subpoenaed, not just the physician who saw Ms Gillies in connection with their request for an adjournment. However, the Tribunal notes that this was not given as a reason for her objection during the hearing when the three pages of clinical notes and records for Ms Colvin were entered as Exhibit 8, having heard that Ms Colvin’s treating physician had moved away. Her reason for objecting, at the time, was that these clinical notes and records had not been produced in advance. The Tribunal ruled that as Ms Colvin’s mental state had been put in issue in the pleadings, the evidence was relevant. However, the Tribunal offered the Respondents the opportunity to have additional time to prepare their questions on these notes and records. The Tribunal finds that in their final submission, the Respondents are attempting to re-open their earlier objection, based on a deliberate mischaracterization of the manner in which evidence was entered and the reason why a ruling was made.

218Moreover, the Tribunal finds that she has relied on her sudden stress-induced illnesses, both during the pre-hearing conference call and at the hearing on the merits, to seek further indulgences and adjournments that the Respondents would not otherwise be entitled to receive, as a matter of natural justice, in order to avoid what is clearly a painful situation for her. She would rather retreat to her office, where she is “too busy,” than prepare for or appear at this proceeding. She, too, asserts that there is a “conspiracy” against them without any evidence of such, and blames the dispute over time-off during Christmas 2000 as the cause of these difficulties. While that dispute may have worsened the morale at Hillcrest Variety, the Tribunal rejects the argument that these Complaints were brought forth as revenge. Rather, all of these unfounded accusations, combined with her clear pattern of avoidance of due process, have inclined the Tribunal to question her credibility.

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

219The Tribunal finds that each of the Complainants’ right to equal treatment to employment without discrimination based on sex was infringed, contrary to section 5 of the Code.

220The Tribunal finds that Mr. Gillies’ referred to Ms Jackson as “sweetheart” twice, as set out in paragraphs 22 to 24, following the Apricot Incident. At first, he called her “sweetheart” and then gave her an unwanted hug and kiss, in violation of sections 5 and 7(3)(a) of the Code. Support for this conclusion is found in Strauss v. Cdn. Property Investment Corp. (No.2) (1995), 1995 CanLII 18191 (ON HRT), 24 C.H.R.R. D/43 (Ont. Bd. Inq.). In that case, a male supervisor’s attempt to kiss a female employee constituted a sexual advance. The day following the Apricot Incident, Mr. Gillies called Ms Jackson “sweetheart” again, and attempted to kiss her once more. Ms Jackson reported the second incident to Ms Gillies. Both Ms Jackson and Mr. Gillies testified that Mr. Gillies was intoxicated during the first incident, and Ms Jackson avers that he was also intoxicated during the second incident. The Tribunal finds that Ms Jackson did not welcome his advances. She formally rejected him as indicated by her reporting the second incident to Ms Gillies.

221The Tribunal finds that his repeated use of the term “sweetheart” and his physical overtures, whether sexual or simply inappropriate, following the Apricot Incident, diminished her personhood. His advance to her was because she is female. Mr. Gillies would not have treated a male employee to whom he intended to apologize in the same manner.

222Similarly, the Tribunal accepts the evidence of Ms Jackson that Mr. Gillies sarcastically called her “sweetheart” and inquired about her sunburn, as set out in paragraph 48, to mock her after she had put the office manager on notice about the “Sassy” Incident and said that if there were any more such episodes with Mr. Gillies, she would turn to the police. This incident violates section 5(1) of the Code.

223Mr. Gillies regularly called Ms Colvin names, such as “hey baby,” “honey,” “good looking,” and “sexy” for eight to nine months, beginning in the spring of 2000. This constitutes sexual harassment. Moreover, Mr. Gillies did not deny using such terms to refer to the Complainants or the other former employees of Hillcrest Variety who testified. To wit, Ms Thivierge testified that Mr. Gillies referred to her as “little lady,” and Ms Happy averred that he called her “sweetie” and “hun”. The Tribunal is not satisfied with Mr. Gillies’ explanation that he refers to his female children by such terms of endearment as “dear” and “little lady” to explain his treatment of Ms Colvin or Ms Jackson, if this was the purpose of that testimony. The manner in which he speaks to his young female children takes on a different, condescending meaning when applied to adult female employees, even if the same terminology was consistently employed, which it was not. Rather, the Tribunal finds that his repeated use of such terms of diminishment, within the broader context of his other sexualized overtures, poisoned their workplace and violates section 5(1) of the Code.

Sexual Solicitation and Harassment

224The Tribunal accepts the testimony of Ms Jackson with respect to the “Sassy” Incident, and finds that Mr. Gillies sexually solicited and harassed her in the workplace, when he said, “You’re a sassy one. I like my women sassy. They’re good in bed and I’d like to take you to bed.” He then taunted her with his economic power over her further, by saying, “C’mon, don’t you have anything to say?” The Tribunal finds Ms Jackson rejected him again by retorting, “I wouldn’t waste my breath on you.”

225The Tribunal also accepts the evidence of Ms Jackson that she reported the Sassy Incident to the store manager the next day, and said, that if he didn’t “do something about Doug and it happened, again, I’d go to the police.” Moreover, the Tribunal accepts her evidence that the store manager reported back to her that he had spoken to the Gillies and that “Doug had gone to a friend’s cabin for the rest of the week.”

226The Tribunal finds, as a matter of law, that Ms Jackson formally rejected Mr. Gillies’ advances at the time of the Sassy Incident, and so he had actual knowledge that such an advance was unwelcome. Further, the Tribunal finds that by putting the store manager on notice on the next business day, she had asserted her legal right to be free from discrimination from a second person at Hillcrest Variety who was in a position to confer, grant, or deny a benefit or advancement to her. It is clear that the management of Hillcrest Variety wanted the situation to cool down, hence Mr. Gillies’ trip to the cabin to keep him away from staff.

227The Tribunal accepts the evidence of Ms Colvin with respect to the Incident at the Ice Machine, and finds that Mr. Gillies sexually solicited and harassed her in the workplace, when he grabbed her, told her that she “had a nice ass,” and added that “I bet you sure could shake it in bed.” She felt “startled” and replied, “fuck right off and don’t ever touch me again!” This was an unequivocal rejection of his unwelcome conduct.

228The Tribunal also accepts the evidence of Ms Colvin with respect to the First Truck Unloading Incident, in which Mr. Gillies made an unsolicited and unwelcome reference to her breasts, the precise wording of which she could not recall. The Tribunal finds that this comment about her breasts is sexual harassment within the meaning of ss.7(2) of the Code, as per de Souza v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd. Inq.), at para. 273.

229The Tribunal also accepts her testimony with respect to the Incident at the Pub, in which Mr. Gillies waited for Ms Gillies to leave the table to use the washroom, to say to Ms Colvin, “How can you fuck if you’re tired? But I bet you can fuck anyway because you’re good in bed.” The Tribunal finds that this incident violated her right to be free from sexual solicitation from a person in a position to confer, grant or deny a benefit or advancement, who knows or ought reasonably to know that it is unwelcome, within the meaning of ss.7(3)(a) of the Code.

230The Tribunal finds her evidence about the Second Truck Unloading Incident to be credible, and finds that Mr. Gillies deliberately rubbed up against her and “hip-checked” her several times while they were each carrying boxes. Further, the Tribunal accepts Ms Colvin’s testimony about the “Drill a Hole” Incident, in which he simulated the physical gestures associated with sexual intercourse. These incidents constitute physical, rather than verbal, sexual advances of Ms Colvin by Mr. Gillies, in clear violation of ss.7(3)(a) of the Code.

Similar Fact Evidence

231The Tribunal is satisfied with the evidence provided by Ms Jackson and Ms Colvin in terms of its reliability and credibility, each of their testimony being sufficient to prove the allegations that underlie their respective Complaints. The evidence of the Complainants is preferred over that of the Respondents, for the reasons set out above under The Credibility and Reliability of the Parties.

232Commission counsel submitted that the evidence of Ms Thivierge and Ms Happy should also be relied upon as similar fact evidence in support of the Complaints filed by Ms Jackson and Ms Colvin.

233Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, provides the Tribunal with the authority to admit similar fact evidence, as upheld by the Divisional Court in Commodore Business Machines Ltd. v. Olarte (1984), 1984 CanLII 5089 (ON HCJDC), 6 C.H.R.R. D/2833, by the Board of Inquiry in Jeffrey v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500, and by the Tribunal in Morrison v. Motsewetsho, 2003 HRTO 21, in Baylis-Flannery v. DeWilde, 2003 HRTO 28, and in Gibbons and Ladouceur v. Sport Medic Inc. et al., 2003 HRTO 26.

234The Tribunal relies upon Cory J.’s analysis of similar fact evidence in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339 at 367, to support its finding that the evidence of Ms Thivierge and Ms Happy meets the probative value test. Cory J. held:

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

235The Tribunal follows the analysis of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at 1258, in which Dickson C.J.C. described similar unwelcome sexual advances, stating, “Often this touching occurred when Janzen was burdened with duties as a waitress and unable to defend herself.” Ms Colvin’s evidence about the Incident at the Ice Machine, Ms Thivierge’s testimony about the Incident in the Chicken Take-Out Section, and Ms Happy’s evidence about both the Unloading Incident and the Candy Shelf Incident occurred when they were busy with their duties and Mr. Gillies was able to come up to them from behind and touch them.

236The Tribunal finds that Mr. Gillies has a sexualized pattern of behaviour directed at the female employees of Hillcrest Variety when he is alone with them. Thus, the probative value of considering such evidence outweighs the prejudicial effect of such evidence.

PARTNERSHIP LIABILITY

237The Tribunal finds, based on the Respondents’ own evidence, that Hillcrest Variety is a family-run partnership, owned and operated by Mr. Gillies and Ms Gillies. Ms Gillies has the primary management duties for Hillcrest Variety, but she is not its sole owner.

238Mr. Gillies has played an active role in the financing and building construction of this partnership, and continues to perform the role of part-time mechanic and handyperson along with that of part-time staff member. As such, he is an active partner and participant in Hillcrest Variety.

239The law concerning the liability of partners is clear: except for limited liability partnerships, every partner in a firm is jointly liable with the other partners for all debts and obligations of the firm incurred while the person is a partner, and severally liable upon death, as per s. 10(1) of the Partnerships Act, R.S.O. 1990, c.P.5. Thus the Tribunal does not need to analyze the nuances of the liability for the acts of management within ss. 45(1) of the Code, since Mr. Gillies is an owner of Hillcrest Variety, rather than a mere officer, official, employee or agent of a limited liability company. There is no “distance” between the Personal Respondent and the partnership that would allow the partnership to avoid liability, since they are one and the same, as per Reed v. Cattolica Investments Ltd. (1996), 1996 CanLII 20104 (ON HRT), 30 C.H.R.R. D/331 (Ont. Bd. Inq.).

REMEDY

240The Tribunal hereby provides its remedial order in accordance with section 41 of the Code.

241The Tribunal notes that Mr. Gillies is liable for his actions by virtue of his status as a partner in Hillcrest Variety. However, the Complaints were referred to the Tribunal by the Commission naming both Mr. Gillies and Hillcrest Variety. Since they were named as separate parties, it is appropriate that the Remedy ordered herein be against Mr. Gillies in his own personal capacity, and in his capacity as a partner of Hillcrest Variety.

242To compensate Ms Jackson and Ms Colvin for their losses arising out of the infringements of their rights, the Tribunal makes the following order for general damages, damages for mental anguish, and special damages.

General Damages

243Ms Jackson and Ms Colvin each had their right to equal treatment with respect to employment without discrimination based on sex violated, contrary to section 5 of the Code. Hillcrest Variety was a poisoned workplace, where the female employees were afraid of being left alone with their employer, where they were routinely referred to as “sexy” or “sweetheart,” and where a female employee who was deserving of an apology was instead forced to settle for a term of diminishment, combined with an unwanted hug and kiss. There is no question that male employees would have received more respect than afforded to female staff members.

244Sexual solicitation and harassment from an employer flows from a power imbalance and is such an affront to an employee’s dignity and personhood, that both Ms Jackson and Ms Colvin felt they needed to notify the authorities and to change jobs. The Tribunal follows Dickson, C.J.C. in Janzen, supra, at p.1282, where the Supreme Court of Canada held:

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

245Sexual harassment in the workplace is unacceptable in our society. The Tribunal refers to the following passage from Morrison, supra, at para. 189:

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

246The Tribunal has weighed the evidence of each of the Complainants, against the following considerations: the seriousness, frequency, and duration of these infringements; the loss of dignity that each of them suffered from being in a work environment that was poisoned; and with respect to Ms Colvin, the gravity of his actions as evidenced by his criminal conviction for sexually assaulting her.

247The Tribunal has reflected upon earlier decisions of the Board of Inquiry and the Tribunal regarding gender discrimination, sexual solicitation and harassment, as found in Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd. Inq.), in deSouza v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd. Inq.), in Arias v. Desai (No.2), 2003 HRTO 1, in Morrison v. Motsewetsho, 2003 HRTO 21, in Baylis-Flannery v. DeWilde, 2003 HRTO 28, and in Gibbons and Ladouceur v. McNab and Sports Medic et al., 2003 HRTO 26.

248General damages can be awarded by the Tribunal for the intrinsic value of an individual’s human rights, distinct from any award for mental anguish, in accordance with ss. 41(1)(b) of the Code and Entrop v. Imperial Oil Ltd. (No.7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 at para. 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 paras.135-137 (Ont. C.A.).

249The Tribunal finds that Ms Jackson’s general damages are $10,000 against the Respondents.

250The Tribunal finds that Ms Colvin’s general damages are $15,000 against the Respondents.

Damages for Mental Anguish

251Mr. Gillies repeatedly violated Ms Jackson’s rights to be free from discrimination in a wilful and reckless manner. Ms Jackson felt morally responsible for the well-being of Ms Thivierge, which the Tribunal accepts is a valid and compensable reaction in a poisoned workplace. As a result, she felt very degraded and protective at the time of these events, and continues to feel pain when recalling them during her testimony.

252She found herself in a difficult professional dilemma as a counsellor, vis-à-vis her statutory duty to report a “child in need of protection,” within the meaning of s.72 of The Child and Family Services Act, R.S.O. 1990, c.C. 11, as amended. This was based on her own observation of Ms Gillies’ bruised face combined with her conversation with “Maxine”, which led her to believe that Ms Gillies had been assaulted by Mr. Gillies. It is clear from all the evidence that the investigation of this matter has been closed and that no such findings of child abuse were made. This situation has caused her unique pain and suffering, because she had to face this situation after having been subjected to harassment herself from Mr. Gillies. The Tribunal finds, however, that the pain and suffering she felt as a counsellor does not have a sufficient nexus to her Complaint to be compensable, nor did she or the Commission claim damages for it.

253The Tribunal has considered her evidence about the Incident at Home Hardware, and determined that it cannot be given any weight, because it was subsequent to her employment with the Respondents and there is insufficient nexus between it and her Complaint.

254The Tribunal finds that her damages for mental anguish are $ 4,000.

255Ms Colvin’s right to be free from discrimination was also violated by Mr. Gillies in a wilful and reckless manner, and it caused her serious mental anguish that has been proven by her own evidence and through the clinical notes of her former physician.

256There is cogent medical evidence before the Tribunal that the mental anguish she suffered caused her to be diagnosed as “depressed,” which included changes to her sleep patterns, mood, energy and appetite. She was irritable at home, and avoided all contact with others for about one month. Her physician recommended that she go on stress leave through Employment Insurance, which she did, from August 30, 2001 to December 30, 2001. Her physician also offered her sleeping pills and anti-depressants, but she declined them. Ms Colvin still finds herself “holding back more” when talking to people.

257The Tribunal finds that her damages for mental anguish are $10,000.

Special Damages

258The Tribunal has the ability to award special damages in order to compensate Complainants for their loss of income and other out of pocket expenses that have a nexus to the discrimination proven under the Code. Since both Complainants have proven their case, it would be customary to make such an award. However, the Tribunal declines to do so, since both Ms Jackson and Ms Colvin have fully mitigated their special damages, as set out below.

259The Tribunal finds that it would have been appropriate to award special damages for loss of income to Ms Colvin, who was diagnosed with “incapacity” and was not well enough to work, due to the sexual harassment she suffered, for a period of approximately four months. The Tribunal also accepts Ms Colvin’s evidence that she earned $8 per hour, and averaged $220 per week working shifts, at Hillcrest Variety. She did not return to work until August, 2002, when she began working at the Atikokan Native Friendship Centre, on a part-time basis. The Tribunal calculates her loss of income for eleven months to be equal to 48 weeks pay multiplied by $220, or $10,560.

260However, the Tribunal also finds that Ms Colvin’s loss of income for eleven months was mitigated by twenty weeks of Sick Benefits under Employment Insurance, and by an employment grant from Human Resources Development Canada. Her T4Es for 2001 and 2002, being Exhibits 6 and 7, reveal that her total benefits paid for both years equals $10,852.

261The Tribunal therefore finds that Ms Colvin mitigated her loss of income completely, and that no further amount is owing to her for special damages.

262The Tribunal finds that Ms Jackson left Hillcrest Variety on September 23, 2001, due to the discrimination she suffered. She began her new part-time, weekend position at Home Hardware in early October, 2001, which was organized to allow her full-time attendance at college. The difference in time is only a week. The Tribunal declines to award her any special damages. Although the sexual harassment was the reason she left Hillcrest Variety, she mitigated her special damages very effectively and has also not suffered an economic loss.

Public Interest

263Counsel for the Commission requested public interest remedies. The Tribunal refers to its finding of a poisoned workplace, and has determined that public interest remedies are necessary for the protection of current and future employees.

264The Tribunal finds that within three months of this decision, Hillcrest Variety must provide human rights educational and sensitivity training to management and supervisors, and post notices provided by the Commission, within its place of business indicating that it observes and upholds the Code.

Pre-Judgment and Post-Judgment Interest

265In their final submissions, the Commission asked for pre-judgment and post-judgment interest on any awards made.

266The Tribunal grants pre-judgment interest on all the awards, commencing from the date of the filing of the Complaints. The Tribunal also orders post-judgment interest on all damages, commencing within thirty days from the date of this Decision.

ORDER

267The Respondents, Douglas Gillies and Hillcrest Variety, are jointly and severally liable to pay Barbara Jackson the following amounts within thirty days of this Order:

(1) $10,000 as compensation for her humiliation and loss of dignity resulting from the infringement of her rights to be free from sexual discrimination, sexual solicitation and harassment, under the Code;

(2) $4,000 as compensation for her mental anguish caused by the infringement of her rights;

(3) 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.

268The Respondents, Douglas Gillies and Hillcrest Variety, are jointly and severally liable to pay Corrine L. Colvin the following amounts within thirty days of this Order:

(1) $15,000 as compensation for her humiliation and loss of dignity resulting from the infringement of her rights to be free from sexual discrimination, sexual solicitation and harassment, under the Code;

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

(3) 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.

269Further, the Respondents are ordered and directed to take the following actions to achieve compliance with the Code in respect of their future conduct and practices within three months of this Order:

(1) provide human rights educational and sensitivity training to the management and supervisors of Hillcrest Variety; and

(2) post notices provided by the Commission, within its place of business indicating that it observes and upholds the Code.

270The 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.

Dated at Toronto, this 29th day of April, 2004.

“Mary Ross Hendriks”

Mary Ross Hendriks

Vice-Chair