HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission Commission
-and-
Lucy Farias Complainant
-and-
David Chuang (also known as David S. Chuang and S. David Chuang) carrying on business as Queenstate Dental Care Respondent
DECISION
Adjudicator: Patricia E. DeGuire
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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
APPEARANCES
Ontario Human Rights Commission ) Tess Sheldon, Student-at-Law, and ) Brian Smith, Counsel
Lucy Farias, Complainant ) On her own behalf
David Chuang (also known as David S. ) No appearance Chuang and S. David Chuang) carrying ) on business as Queenstate Dental Care, ) Respondent )
INTRODUCTION
1The Complainant, Ms Farias, was a patient of the Respondent, David Chuang, a dentist.1 She was still undergoing treatment from the Respondent when he invited her to be his Office Manager/Dental Assistant. She accepted. The employment lasted for four months: from January 27 to May 26, 2001.
2What came out of that brief period of employment/patient-dentist relationship are several allegations of discrimination with respect to employment because of sex (the “Complaint”): (subsection 5(1)); sexual harassment in the workplace because of sex by the Respondent: (subsection 7(2)); sexual solicitation or advance by the Respondent: (subsection 7(3)(a)); reprisal or threat of reprisal for rejecting the Respondent’s sexual solicitation or advance (subsection 7(3)(b)); and reprisal (section 8) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The Tribunal convened the hearing on the merits on February 21 and 22, 2005. The Respondent did not attend. Now, the Tribunal must determine whether the Respondent has infringed the Complainant’s rights as alleged or any other rights; if such infringements contravene section 9 of the Code; and the appropriate remedy under section 41.
BACKGROUND and PRELIMINARY MATTERS
4The Complainant filed an initial Complaint with the Ontario Human Rights Commission (the “Commission”) dated August 3, 2001. The Tribunal received the referral of this case on April 21, 2004. The parties consented to mediation, which was held on July 16, 2004. The mediation was unsuccessful.
5On behalf of the Tribunal, the mediator asked the parties to undertake steps for the continuation of the matter. Specifically, the Commission and the Complainant were to file and serve their Statement of Facts and Issues, and provide disclosure to the parties by August 23, 2004. The Respondent was to file and serve his Response, and provide disclosure to the parties by September 20, 2004; and any Reply was to be filed and served by September 27, 2004. In addition, a Pre-Hearing Conference was set for October 4, 2004 at 17:00 hours.
6Because Dr. Chuang did not have his diary at the mediation,2 he was asked to inform the (Acting) Registrar, by July 28, 2004, whether he was available for the scheduled Pre-Hearing Conference.
7There is nothing on the record from Dr. Chuang in response to that request. Dr. Chuang did not participate in the October 4, 2004 telephonic Pre-Hearing Conference. The operator advised that he had called the number that was assigned to Dr. Chuang a few times; someone had picked up the telephone, but did not speak.
8The Commission’s agent had advised the Tribunal then, that it had sent additional disclosure to Dr. Chuang by regular mail, but it had not been returned to the Commission. However, after the mediation, the Commission had served its pleadings on Dr. Chuang at his last known address. The package was returned to the Commission. The Commission had not tried to communicate with Dr. Chuang since then.
9The Tribunal proceeded to hold the Pre-Hearing Conference because it was satisfied that the Dr. Chuang had been notified properly.
10By Notice of Motion, January 28, 2005, the Commission, and adopted by the Complainant, sought to amend the Complaint to add the grounds of sexual solicitation or advance by the Respondent (subsection 7(3)(a)); reprisal or threat of reprisal for rejecting the Respondent’s sexual solicitation or advance (subsection 7(3)(b)); and reprisal (section 8).
11Based on the results of its enquiry, the Tribunal was content that Dr. Chuang had been duly notified, and proceeded to make a determination on the motion. The motion was granted; see Farias v. Chuang 2005 HRTO 8: (“Farias No. 1).
12Dr. Chuang has not filed or served a response to the Commission’s pleadings. He has not provided the parties with disclosure. He did not take part in the written motion of January 28, 2005. He did not attend the hearing on the merits. The Tribunal’s (Acting) Registrar advised that none of the mail the Tribunal has sent to Dr. Chuang was returned.
13At the Pre-Hearing Conference, the Commission advised the Tribunal that it would call three witnesses. During the hearing on the merits, the Commission informed the Tribunal that one witness, Mr. Christopher LaPlante, was unable to attend to give viva voce evidence because his father had suffered a heart attack and had to be hospitalised.
14Because of the difficulty in securing a hearing date timely, rather than adjourn the hearing indefinitely, the Tribunal was content to receive Mr. LaPlante’s evidence by affidavit, subject to questions from the Tribunal. The affidavit was sworn, served and filed on February 25, 2005. For the said reason, the Tribunal was content to receive the Commission’s closing arguments in writing, subject to questions from the Tribunal. Written closing arguments were filed and served on March 11, 2005.
15The Tribunal was unable to review the affidavit and the Commission’s Closing Arguments until April 18, 2005. It had no questions arising out of those documents. Thus, the Tribunal considered the case closed by April 18, 2005.
16Against the backdrop of the foregoing, the Tribunal is satisfied still that Dr. Chuang was duly served. Accordingly, the Tribunal has determined that the Respondent, Dr. Chuang, has received proper notice of these proceedings, and it was proper for the Tribunal to go on with each step of the proceedings; the Respondent could have taken part in these proceedings if he wished to do so. (See subsection 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22).
ISSUES
17The Code prescribes that in holding a hearing into the merits of a complaint the Tribunal should carry out a three-part analysis to determine, namely: whether a right of the Complainant has been infringed, and the infringement is a contravention of section 9; who infringed the right, and whether the person is a party to the proceeding; and the appropriate order under section 41 of the Code. Thus, in this Decision and Reasons, the Tribunal considers the following issues:
a) Was the Complainant’s right to equal treatment with respect to employment without discrimination because of sex infringed?
b) Was the Complainant’s right to freedom from harassment in the workplace because of sex by her employer infringed?
c) Was the Complainant’s right to be free from sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to the Complainant where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome: or
d) Was the Complainant’s right to be free from reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advance to the Complainant?
e) Was the Complainant’s right to claim and enforce her rights under the Code without retaliation or threat of retaliation for doing so infringed?
f) Did the named Respondent infringe those rights?
g) What is the appropriate remedy under section 41 of the Code?
DECISION
18The Tribunal has determined that Dr. Chuang has infringed certain of Ms Farias’ rights under subsection 5(1), 7(2), 7(3) and section 8 the Code. Those infringements contravene section 9 of the Code. The specific infringement and the extent of the infringement shall be dealt with throughout this decision.
Findings of Fact
19Essentially, this case turns on the evidence of the Commission and the Complainant because the Respondent did not participate in these proceedings, except the mediation. Thus, the Tribunal’s final determination will be based on whether the evidence given by the Commission and the Complainant establishes a prima facie case.
The Principle of Adverse Inference
20The Commission asks the Tribunal to draw adverse inferences because of the Respondent’s failure to provide any evidence. The Tribunal may invoke the permissive adverse inference principle only if the Commission and the Complainant have established a prima facie case. The Tribunal may import the adverse inference principle not only against the Respondent, but also against all the parties. This principle may be invoked, at the Tribunal’s discretion, without a request by any party to exercise it.
21Notable authorities of the Law of Evidence, for example, Sopinka, Lederman and Bryant, in The Law of Evidence in Canada (2nd ed) (Toronto: Butterworth, 1999) at para. 6.321 have written about how a trier of fact and law ought to deal with the failure to testify, to call a material witness or other evidence in a proceeding. The salient passage, which is adopted for guidance in this case, is reproduced below:
In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such a failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it. [Cite omitted: emphasis added].
Summary of Evidence and Findings
22The factual underpinnings of each issue are braided. Thus, the evidence may be repetitive.
23Ms Farias was on a bus, going home, when an advertisement caught her attention. The essential part of the sign that she recalls stated: “905-450-DAVE,” and that services were provided 24 hours daily. That was sometime in January 2001; she says she does not recall the exact date, but believes she had made an appointment to see Dr. Chuang for January 20, 2001. Ms Farias attended Dr. Chuang’s office for the appointment and made another appointment to see him. Meanwhile, Ms Farias lost her job.
24Ms Farias called Dr. Chuang on her cell phone, and informed him that she had to cancel her appointment. At the time, she was in a restaurant, in the company of her then boyfriend, Mr. Christopher LaPlante. Ms Farias says that in response to Dr. Chuang’s question, why she had to cancel her appointment, she informed him that she had been laid-off work. Ms Farias asserts that Dr. Chuang had said to her that she should have observed when she had visited his practice he was alone. Then he asked her the amount of wage she had earned at her last job. She told him and he then offered her a job at the rate of $2 to $3 more than her last job. She recounted that at the same time, he had told her she would have full dental coverage. He had asked her to call him later that same day. She accepted his offer even though she had no education or experience with respect to dentistry.
25Ms Farias recounts her employment history: she had worked for six to seven years in a hair salon; 18 months in retail; and as an administrative receptionist. On the first day of her employment with Dr. Chuang he had asked for her résumé, but said it was a formality.
26Ms Farias asserts that she was “a little surprised” when Dr. Chuang hired her. She recalls Dr. Chuang had said that he hired her because he thought she was nice and looked like an actress called Sandra Bullock. She recounts that at the very beginning of her employment, Dr. Chuang would introduced her to patients and ask: “Doesn’t she look like Sandra Bullock?” She recalls that at her first dental appointment at Dr. Chuang’s office, he had “leered” at her and gazed into her eyes. She had looked away. When she was paying him, he gave her a mug with the inscription “Queenstate”. He had told her he gave a mug to “all good patients.”
27Ms Farias and Mr. LaPlante assert that Dr. Chuang did not interview Ms Farias, or ask her for a résumé before he offered her the job. Mr. LaPlante recalls that the conversation had lasted about five minutes. He had heard Ms Farias’ comments during the conversation and had observed her as well; she seemed happy.
28Mr. LaPlante states that after the conversation, Ms Farias told him that Dr. Chuang had offered her a job and free dental care. He was surprised. He thought it was strange and wondered why Dr. Chuang “so quickly” offered Ms Farias a job, with more pay, and “free dental work,” without an interview or a résumé when, to his knowledge, Ms Farias did not have any dental or medical education, or experience. Mr. LaPlante deposes that he has been Ms Farias’ friend for over 10 years. At the beginning of her employment with Dr. Chuang, and near the end of it, he was dating Ms Farias.
29Mr. LaPlante’s deposition, specifically paragraphs 1 to 9, supports Ms Farias’ evidence. The Tribunal notes that Mr. LaPlante recalls that Ms Farias had volunteered the information to Dr. Chuang that she had lost her job as the reason for cancelling the dental appointment. The Tribunal accepts Mr. LaPlante’s version over Ms Farias’.
30That difference alone does not affect the Tribunal’s finding that Dr. Chuang offered his then patient, Ms Farias a job in his practice, and free dental services, without an interview, and with the knowledge that she had no relevant education or experience for the job. Further, the Tribunal finds that Dr. Chuang alone was involved in the hiring of Ms Farias, and he was her sole employer.
31The Tribunal finds that Dr. Chuang did offer free dental services to Ms Farias as an employment benefit. Ms Farias was entitled to that benefit, and it was available to her from the time she began to work for Dr. Chuang up to the date that she resigned.
32Ms Farias commenced employment with Dr. Chuang sometime in January 2001. In her oral evidence she states that she does not recall the exact date. In her letter to the Royal College of Dental Surgeons of Ontario (“RCDSO”) dated November 2, 2001, Exhibit 1, Tab 7, she states that she had begun employment with Dr. Chuang on January 27, 2001.
33The Tribunal notes that January 27, 2001 was a Saturday. Under date of June 6, 2005, the Tribunal caused the (Acting) Register to enquire from Ms Farias the exact day she had commenced work at Dr. Chuang’s practice. In response, Ms Farias states that she had began to work for Dr. Chuang on a Saturday, January 27, 2001.
34Ms Farias avers that she used to work about 30 to 35 hours, five days weekly. Her workday began early. She asserts that Dr. Chuang had told her to say she was the office manager if anyone asked about her position at his practice.
35Ms Farias describes the logistics of receiving her wages, suggested by Dr. Chuang to which she agreed. Her first pay was by way of a cheque. After that, Dr. Chuang said he preferred to make direct deposits to her account and recommended she use President’s Choice Financial. He had informed her that President’s Choice Financial awarded points towards the purchase of groceries. She had informed Dr. Chuang that she could not open the account alone, and he volunteered to assist her. They opened a joint account. The account bore her name and Dr. Chuang’s name. Both received cheques and statements from President’s Choice Financial. Dr. Chuang would deposit her wages at President’s Choice Financial. She asserts that she withdrew the money promptly, and deposited it in the Bank of Montreal, which was her bank. She did not want Dr. Chuang to know what she was doing with her money.
36In response to the Commission agent’s question about how she felt having a joint account with Dr. Chuang, Ms Farias says she did not like it; that is something one does with a fiancé or husband. That begs the question why Ms Farias did not ask a family member or a family friend to open an account with her. This is odd. There is no evidence before the Tribunal that Ms Farias was afraid of Dr. Chuang: Or, that Dr. Chuang had pressured her into opening a joint account with him.
37During Ms Farias’ employment at Dr. Chuang’s practice, no one else worked there except briefly, when he hired another young female. Ms Farias used to work in the back and the front of his office. Both were often in the “operation rooms”, which are located in the back.
38When the Commission’s agent asked how often she was alone with Dr. Chuang, Ms Farias replied that the office was not very busy. She would be alone with him about two-and-a-half to three hours a day.
39Ms Farias asserts that at the onset, she noticed “there was a lot of work.” Dr. Chuang needed help and she told him so. She had recommended a friend named Teresa. At one point Dr. Chuang called her at home and asked how old Teresa was and what she looked like. She had told him that Teresa was 39. When anyone dropped off a résumé, he would ask if the person was a girl and if she was nice. At one point she decided not to tell Dr. Chuang the gender of the person.
40At the beginning of her employment with Dr. Chuang, she was a “chair-side assistant”. Her duties included sterilising equipment, taking x-rays, removing sutures, taking impressions, and adjusting dentures, extracting teeth from the upper and lower jaw, administering local anaesthetics to patients, scheduling patient appointments, charting patients’ services, and replying to patients’ enquiries. Ms Farias points out specifically that at the time she was not certified to take x-rays.
41In his deposition, at paragraph 10, Mr. LaPlante makes the following remarks about Ms Farias experience at the beginning of her employment with Dr. Chuang:
At the beginning of her employment, Ms Farias advised me that she was excited about her new position. Ms Farias advised me that she was hired as a receptionist, although Dr. Chuang allowed Ms Farias to do dental work, such as extracting teeth and removing stitches. Ms Farias called me after the first occasion that she extracted a tooth, and seemed very happy about her job duties.
42Based on the evidence of Ms Farias and Mr. LaPlante, the Tribunal finds that at the onset of her employment Ms Farias did enjoy working at Dr. Chuang’s practice, and was not averse to performing the tasks that Dr. Chuang assigned to her even though she had no education or experience at all in the dental field. Further, the Tribunal finds that there was an affable working relationship between Dr. Chuang and Ms Farias. That is drawn in part from Ms Farias’ evidence that Dr. Chuang used to drive her home after work.
43Ms Farias recounts that the first encounter with Dr. Chuang, which she found objectionable, was his calling her names such as “juicy Lucy”, “sweetheart”, and “honey”. That occurred at the beginning of her employment. She avers that referring to her by those names made her feel “uncomfortable”. She did not like it, but at the time, she did not voice any objection. She “gave him a disapproving look.”
44When asked by the Tribunal whether it appeared to her then that Dr. Chuang noticed her “disapproving look”, Ms Farias responds: “He did notice, but I don’t think he understood, in my opinion.”
45The Tribunal finds this aspect of Ms Farias’ evidence plausible. The observation that Dr. Chuang was sensitivity dispossessed or unaware when he was being slighted is a recurring theme of the evidence, hearsay and all. The Tribunal will expand on that point when dealing with the test to be met for a finding of sexual harassment.
46Ms Farias recounts that a few times Dr. Chuang had shown her, on the computer, the profiles of naked women and men, both well endowed. She states that it seemed that Dr. Chuang had shown it to her as a joke. However, she did not comment or laugh; she thought it was a “little odd” that he would show her such images. She felt “uncomfortable” when she showed her those images.
47The Tribunal finds that Dr. Chuang did show those images to Ms Farias. Further, the Tribunal is persuaded that exposing Ms Farias to those pictures was a metaphor for Dr. Chuang’s expression of his feelings toward Ms Farias.
48However, there is no evidence that Ms Farias had conveyed to Dr. Chuang that exposing her to those profiles was unwelcome or objectionable. Thus, this does not fall within the Tribunal’s conclusion in deSousa v. Gauthier, [2002] O.H.R.B.I.D. No. 9, 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd. Inq.).
49Ms Farias relates that she gave Dr. Chuang her home telephone number, at his entreaty, after she began to work for him. When she was a patient, she had given him her cell phone number. He called her “lots of times”, about five times weekly, including weekends, and most times the content of his conversation or enquiry was not work-related. She recalls a family friend, Denise, once answered the telephone and noted that it was “odd” that Dr. Chuang would call Ms Farias on the weekend.
50According to Ms Farias’ recollection, Dr. Chuang would call and ask childish questions, e.g., if she was watching TV or what she was watching on TV. He would ask her to attend basketball games with him; he invited her to concerts, Niagara Falls and asked her out for dinner. She asserts that on average, Dr. Chuang invited her to dinner about three to four times a week. Ms Farias said she did not accept his dinner invitations. On one occasion he invited her to accompany him to either Newfoundland or New Brunswick for two weeks, and to visit with him at his cottage. Those invitations were extended while she was at work as well. This part of Ms Farias’ evidence is buttressed by Mr. LaPlante’s affidavit at paragraph 15.
51Ms Farias avers that at work, Dr. Chuang would ask her out for lunch. He would buy Popeye chicken and bring it back to the office, or order pizza, and they would eat lunch together at the office. She relates an incident where she had eaten chicken and left a morsel of flesh on the bone; Dr. Chuang picked it up and ate it. She comments: “I felt it was kind of gross.”
52On another occasion, sometime in February 2001, one of Dr. Chuang’s colleagues, Dr. Kenneth Han, visited his office to observe teeth implant procedure. After the exercise was completed she was invited to join them for lunch. She had not brought her lunch that day; so, she accepted the invitation. All three of them went to lunch together. Sometime during lunch, she heard Dr. Chuang say to Dr. Han that he, Dr. Chuang, “does not handle rejection very well”.
53On their return to Dr. Chuang’s office, Dr. Han commented that he liked Ms Farias’ voice and wanted her to come work for him. Dr. Chuang, who was standing behind her, put his arms around her and said: “No. She is mine.” Ms Farias says: “My eyes bugged out.” She says she was “surprised” and felt “uncomfortable”.
54According to Ms Farias, Dr. Chuang had given her an e-mail address—which she does not recall—because he was going to be away from the office. Ms Farias asserts that she had received an e-mail from Dr. Chuang during the time he had visited Texas, U.S.A. The e-mail stated: “Hi sweetheart, I miss you.” The affiant, Mr. LaPlante, states that he had seen an e-mail that Dr. Chuang had sent to Ms Farias when he was in Texas: (paras. 12 and 16 of his Affidavit). Ms Farias states that on his return from Texas, Dr. Chuang brought her a deflated college football as a memento. She does not recall the name of the college.
55In addition to his other overtures, Ms Farias states that in February 2001, Dr. Chuang had presented her, at work, with roses for Valentine’s Day, together with a card, and a heart-shaped stuffed toy. On another occasion he gave her chocolates.
56What appears to be the manufacturer’s inscription on the card states: “Face it . . .You want me.” There are 13 hearts on the card. There is a hand-written inscription in the card, which is reproduced below verbatim:
My DEAREST Sweetie Pie, Feb’ 01 Juicy Lucy!!! Happy Valentine’s Day! I really can’t tell you how happy I am to be working with you! You’ve been a real gem and simply great! You are a real sweet heart! Be my Valentine! Love, Dave.” (Exhibit 1, Tab 3: emphasis in original).
57In his affidavit-evidence, Mr. LaPlante asserts that Ms Farias informed him that she had received gifts from Dr. Chuang, including flowers and a card on Valentine’s Day. The Tribunal is unable to determine whether Ms Farias had contemporaneously related this to Mr. LaPlante. His affidavit does not state when Ms Farias had informed him about these events.
58When asked how she felt about receiving gifts from Dr. Chuang, Ms Farias said she was surprised and felt uncomfortable because of the contents of the card. However, when asked whether she informed Dr. Chuang that she was surprised, she responded: “No.” When asked whether Dr. Chuang had asked her for anything in return, Ms Farias said Dr. Chuang did not ask for anything in return other than inviting her to dinner. She rejected his offer: “I said no; I was going to a friend’s house.”
59Ms Farias says that the day after Valentine’s Day, she went to work. She said good morning to Dr. Chuang, but he did not respond and for a while he did not say much.
60There is no evidence before the Tribunal that Ms Farias rejected or returned Dr. Chuang’s gifts. Could accepting his gifts be enough to make Dr. Chuang reasonably conclude or believe that he was gaining ground in his pursuit of Ms Farias? Should he have known or reasonably ought to have known that his advances were unwelcome? The Tribunal will deal with this question later in its Reasons.
61Ms Farias avers that near the beginning of her employment with Dr. Chuang, he was showing her how to take x-rays. He put his arms around her waist, held it for a few seconds. A patient was in the other room, but Ms Farias says she believed the patient did not observe that incident. Ms Farias states that she did not make any comment at the time. She “tensed up” and she felt uncomfortable. She says at the time she thought if it happened again, she would say something.
62Ms Farias recounts another incident, which happened around February/March 2001. She was cleaning the dental chair with a rag. Dr. Chuang had taken some mats to shake them out. He then approached her and began to make a “moaning or groaning sound” and put his arms around her waist. At the time, no one was around.
63Ms Farias asserts that she had spoken to someone called Billy on the phone and told him about that incident. The Commission’s agent asks Ms Farias about the interaction between her and Dr. Chuang after that incident. Ms Farias says she does not remember what happened the next time she went to work after that incident had occurred.
64The Commission’s agent asks Ms Farias how she had responded to Dr. Chuang. She avers that she had responded with body language. “I raised my shoulders, ” she states. When asked whether it seemed to her that Dr. Chuang had noticed her body language, Ms Farias replies: “No. If he did, he didn’t take note of it.” When asked how the incident made her feel, she replies: “I didn’t want him touching me . . ..” She avers that she felt uncomfortable and tense.
65In his affidavit, Mr. LaPlante relates a similar story, which he said Ms Farias had recounted to him: (see paragraph 13 of his affidavit). In assessing the weight to be ascribed to Mr. LaPlante’s evidence, the Tribunal notes that he did not state when Ms Farias had informed him about this incident. Without that notion of contemporaneity, the Tribunal is inclined to give it little weight, if any.
66When asked to describe the next time Dr. Chuang had touched her inappropriately, Ms Farias recounts three incidents. The first was around March 2001. She was in the operatory sitting at a small table, across from Dr. Chuang, charting a patient, when he touched her hand. That happened a couple times. Ms Farias remarks that she was surprised and uncomfortable because a patient was present. She did no want to make a scene. She was unable to move; so, she just moved her hand back, and gave Dr. Chuang a disapproving look. She describes “a disapproving look” as a “look that most people would interpret [that their behaviour] was not appreciated.” Ms Farias asserts that she was angry because Dr. Chuang did not have a right to touch her.
67The second incident happened around April 2001, when Dr. Chuang was taking her home after work. Ms Farias’ evidence is that at the onset of her employment Dr. Chuang, as well as her father, used to drive her home from work. On one occasion when Dr. Chuang was driving her home, he tried to hold her hands. Her hands were on top of her legs. When he touched her, she moved them and placed them in her winter coat pocket. At that juncture, Dr. Chuang put his hand on the inner part of her thigh.
68When asked how she had responded, Ms Farias asserts that she did not express any vocal disapproval. She does not remember if she conveyed a body language response. However, after that incident, her father picked her up from work or she would take a taxi home. She relates that Dr. Chuang had remarked in a sharp angry tone: “You don’t take rides home . . .don’t you like me anymore?”
69Mr. LaPlante deposes that Dr. Chuang started to drive Ms Farias home soon after she started to work for him. He was not pleased with that arrangement. (One should recall that Mr. LaPlante deposes that at the beginning of Ms Farias’ employment with Dr. Chuang, he was still dating Ms Farias). He avers that at some point, Ms Farias had informed him that on one occasion while Dr. Chuang was driving her home, “he tried to hold her hand and that he put his hand on her leg”: (see Affidavit paragraph 14). Again, Mr. LaPlante does not give a timeframe when he was informed about this occurrence.
70The third incident occurred during a patient visit. They were in the operatory, when Dr. Chuang rubbed his thigh against her leg once or twice. She moved her leg away and gave Dr. Chuang “a disapproving look”. Because a patient was there, she refrained from saying anything. In her view, given the position of the table and the chair, the patient could not see what had happened. When asked how she felt, Ms Farias states: “It was not wanted . . .uncomfortable and angry because it was not wanted.”
71The Tribunal accepts Ms Farias’ evidence as facts of Dr. Chuang’s conduct towards her. Further, the Tribunal finds that despite her discomfort with Dr. Chuang’s conduct, she did not tell him that his advances were unwelcome. Neither did her body language, except the first time when he touched her hand.
72The Commission’s agent asks: “When was the last time Dr. Chuang touched you?” Ms Farias states that the last time Dr. Chuang had touched her was towards the end of April 2001. Ms Farias recounts that at that time, she was having problems taking a panoramic x-ray. Using a stuffed animal as a prop, Dr. Chuang tried to demonstrate how to take the x-ray. She then tried to angle the camera, but Dr. Chuang said, “No. May be you’ll see better on the other side.” As she tried to go on the other side, “Dr. Chuang placed his hand on [her] behind”. Ms Farias states: “I felt violated. It was completely unwanted and it should not have happened. It made me feel very uncomfortable . . .angry, a little stunned.”
73Ms Farias asserts that she used to keep a journal. That day she recorded the incident in the journal: (See Exhibit 1, Tab 5). The entry is reproduced below verbatim:
April 27, 2001
I very upset. he (Dave) showing me how to take PA’s he asked me to sit on the chair so I can see better, and as doing so, he touched my ass. Fucking Jerk.
74Ms Farias states that she had had enough. The day after that incident, she called Dr. Chuang and confronted him. She told him that he had made her very uneasy and uncomfortable. Ms Farias asserts that Dr. Chuang had asked her why and she had replied that he had touched her “butt” when he was showing her how to take PAs. Ms Farias evidence is that Dr. Chuang had replied: “What are you talking about?” She states that she answered: “In the operatory when you said ‘sit on the chair to see better.’” She avers that Dr. Chuang had apologised. (See Exhibit 1, Tab 7, p. 4). Ms Farias asserts that Dr Chuang made laudable comments about her then as well, including that she was a very good employee and had potential. She asserts that she asked him not to call her at home any more unless it was work-related, and confronted him about trying to hold her hand. Also, she had told him that she did not want to return to work for him. He had replied that he could not talk because he was with a patient.
75The next morning she spoke to Dr. Chuang. She does not recall who initiated the phone call or if she was scheduled to work that day. Ms Farias states that during that conversation Dr. Chuang had asked her whether she had told anyone. He told her that he wanted to come by her house to visit her because he thought she was having a breakdown. She recalls him telling her that he did not want her to leave his practice and that she had done a lot for him. Also, she recalls that he had said, once he had paid off his practice, he would be able to pay her more money. In the end she did not quit. She felt that she had set boundaries and felt the work relationship would be a little bit better.
76When asked why she did not confront Dr. Chung earlier, she states perhaps she was “a little bit timid” to do so. She states that until that time she used to deal with her feelings by discussing the incidents with a doctor, and by recording it in her journal. However, Ms Farias did not indicate that she was fearful of Dr. Chuang.
77Ms Farias avers that the day she had confronted Dr. Chuang, she was with Mr. LaPlante outside a 7-11 convenience store. In the main, Mr. LaPlante’s affidavit confirms Ms Farias’ evidence. He states that Ms Farias “was upset, and her voice was much louder than usual”. He overheard Ms Farias telling Dr. Chuang “he had crossed the line and that she did not want him calling her at home unless it was work-related”. He states that Ms Farias had informed him that she wanted to resign her position at Dr. Chuang’s practice. He was unable to hear Dr. Chuang’s responses, but Ms Farias told him that she had changed her mind and decided not to quit; instead, she would try to make it work.
78The day after the second telephonic discussion, Dr. Chuang called Ms Farias at her home and asked her what she was watching. Then he asked her to watch a show called “the Weakest Link”. She was surprised. She did not respond. Dr. Chuang just said goodbye and rang off.
79Ms Farias avers that the work environment changed after she had confronted Dr. Chuang. “He was mean.” She recounts that on a few occasions Dr. Chuang had yelled at her in front of a patient. During one of those incidents, a patient asked Dr. Chuang why he was being such an “asshole”. Ms Farias is not sure if those were the patient’s exact words, but it was something to that effect. She recalls that on another occasion, Dr. Chuang had phoned her at home. He wanted to talk. She told him that it was her mother’s birthday and she had family over. He began to yell about a switch or a sterilizer.
80Also, Ms Farias recalls yet another incident when Kenneth Han was present. She was wrapping something in foil when the roll fell from the box. Dr. Chuang yelled at her. Han intervened and said: “Dave its just foil.”
81The Commission’s agent asks Ms Farias whether to her knowledge Dr. Chuang had treated any other employee the same way he had treated her. She states that she knew two women, Tina Izzo and Michelle Stafford, and had spoken to them by telephone. She asserts that she had made notes of their conversations at the same time.
82Ms Farias had rewritten those notes for the Royal College of Dental Surgeons of Ontario (“RCDSO”), and enters them in these proceedings as Exhibit 1, Tab 7. The original notes are filed with the Tribunal.
83Ms Farias says she had called Ms Stafford the same day she resigned. She avers that her conversation with Ms Stafford did not influence her decision to resign. She had decided to talk to Ms Stafford because every time Ms Stafford had called the office, she seemed very angry. She wanted to know whether Ms Stafford had a similar experience.
84Ms Farias recounts that Ms Stafford had informed her that her work experience with Dr. Chuang was “awful”. She had suffered depression. Dr. Chuang used to call her at home “all the time”. As a result, she and her fiancé had many fights. Ms Farias says Ms Stafford had related to her that she had slapped Dr. Chuang on one occasion and in her view, he is a “sick freak”. Ms Stafford had informed her that she had worked for a bank for many years before Dr. Chuang wooed her to work for him, and still owed her vacation pay. He frequently visited her house, and on occasions he had yelled at her in the presence of patients. Ms Stafford had informed her as well, that she had known Dr. Chuang since she was five years of age. (Exhibit 1, Tab 7 at p. 10).
85Ms Farias states that Ms Stafford had informed her about Ms Izzo. Ms Stafford was not called to give evidence at the hearing.
86Ms Farias states that she had retrieved Ms Izzo’s contact information from Dr. Chuang’s computer the night she went to drop off her resignation and the office keys. A day or two later she called Ms Izzo. She had transcribed the telephonic conversation she had with Ms Izzo. That was entered as Exhibit 1, Tab 7. Because that recording was a transcription of the original notes, the Tribunal requested and obtained the original notes of the conversation.
87Ms Farias asserts that Ms Izzo had informed her that she had worked for Dr. Chuang. He had driven her crazy. He had tried to hold her hand and play “footsies” with her. She would either unplug her phone or let her boyfriend answer it. She had told him to not call her on her mother’s line anymore. He had told her to dump her boyfriend. He caused many fights between her and her boyfriend. He “would show up at her house”. She threatened to call the police for him, and slammed the door in his face. Her mother thought she was mean, but she told her mother that is how one has to be. There were occasions when he showed up with flowers, letters, and poems and left them at her door. Also, Ms Farias asserts that Ms Izzo had informed her that Dr. Chuang had a bad childhood; his parents never bought him any toys; and he was still a virgin.
88Ms Farias recounts that around April 2001, someone telephoned the office. The caller identified herself as Dr. Chuang’s mother and wished to speak to him. At some point, Dr. Chuang gave the telephone to Ms Farias and said his mother wanted to speak with her. Ms Farias asserts that although she thought it was strange, she took the telephone. Ms Farias asserts that the caller told her that she liked Ms Farias and thought Ms Farias was a mature person. The caller had said she knew what was going on with another employee by the name of Ms Stafford. Ms Farias states that she had commented that she noticed when Ms Stafford called the office, she was very upset, but she didn’t know what was going on. The caller had informed her that Ms Stafford said Dr. Chuang had owed her money, but “Dave” had told the caller that he had paid Ms Stafford.
89Ms Farias avers that the caller had a “thick accent”, so, it was difficult to understand her. However, the caller had said, “My son is very lonely.” She remarked that she “didn’t know how [Ms Farias] could do it”. She avers that the caller had invited her to work for her and her husband, and added: “We have to keep David in line ... keep him straight.”
90Ms Farias avers that the content of the caller’s conversation triggered alarm bells. She became concerned, especially over certain comments the caller had made: about Ms Stafford; about her son being lonely; help to keep him straight; and “I didn’t know how you could do it”.
91Ms Farias asserts that Dr. Chuang was jealous of her boyfriend, Mr. LaPlante. She recalls Dr. Chuang’s behaviour on one occasion when Mr. LaPlante had met her at work. A loonie had dropped in her coffee and Mr. LaPlante began to pour out the coffee to retrieve it. Dr. Chuang came out at that time and asked angrily or jealously: “What are you doing?” When asked why she said “jealously”, she states that it was the end of April or early May 2001 after she had confronted Dr. Chuang about touching her behind.
92At paragraph 20 of Mr. LaPlante’s affidavit, he states that in the morning of May 15, 2001, before Ms Farias started work, he was drinking coffee with her. He observed Dr. Chuang outside his office. Dr. Chuang seemed very upset and angry when he saw Mr. LaPlante and Ms Farias together. He states that Dr. Chuang “shouted”: “What are you doing?” and then abruptly walked away. He states that Dr. Chuang’s voice was “very loud” and he seemed irritated. “It is [his] belief that Dr.. Chuang was jealous of [his] spending time with Ms Farias.”
93Ms Farias states that she had continued to receive treatment from Dr. Chuang after she had confronted him. She asserts that she felt uncomfortable, but she was in pain, and she had coverage. She recounts that she had developed an abscess, in the area where Dr. Chuang had done a root canal. She had told him about it, which he diagnosed as “popcorn syndrome”. He did surgery on the gum to get out the popcorn. Also, he had informed her that “there was a hole in [her] jaw where he had done the root canal”, and he had to repair it. He inserted an artificial bone in the hole, and then stitched it up. Ms Farias asserts that late May 2001, in the presence of Mr. LaPlante, she removed the sutures. Ms Farias avers that Dr. Chuang did not give her a bill or invoice for work he had done for her.
94Ms Farias asserts that when she first began to work for Dr. Chuang, she referred Mr. LaPlante to Dr. Chuang. She states that she did so because a sign at the reception area indicated that Dr. Chuang would pay $50 to anyone who had made a referral to him. She asserts that Mr. LaPlante did not receive any dental service from Dr. Chuang because she had informed Mr. LaPlante about Dr. Chuang’s behaviour towards her.
95Mr. LaPlante deposes that around May 2001, Ms Farias referred him to Dr. Chuang. She had informed him that Dr. Chuang would give her $50 for a referral. He was trying to do Ms Farias a favour to agree to be treated by Dr. Chuang; also, he needed dental care at the time. He filled out a patient questionnaire. “However, Dr.. Chuang did not treat [him] as Ms Farias resigned from her employment with Dr.. Chuang before that.” He states that Ms Farias resigned her position in late May 2001. He had accompanied Ms Farias to drop off her resignation letter and the keys to Dr. Chuang’s office. (See affidavit, paras. 21 and 22).
96The Tribunal accepts Mr.. LaPlante’s version of the referral, that Ms Farias had referred him to Dr. Chuang in May 2001 and not when Ms Farias first began to work for Dr. Chuang. He was the subject of the referral. Besides, his reason for not receiving treatment is consistent with the time Ms Farias had resigned. It is a curious thing that Ms Farias would engage her male friend in seeking treatment from Dr. Chuang, for a $50 bonus, after she was not satisfied with the root canal he had done; knowing she was “uncomfortable” when she had allowed him to treat her; and after she had told him that his solicitation or advances were unwelcome, being of the belief that Dr. Chuang was jealous of Mr. LaPlante?
97In assessing the evidence of Ms Farias and Mr. LaPlante, the Tribunal notes that it seems odd that after Ms Farias had confronted Dr. Chuang in April 2001, and both thinking that he had evinced a propensity to be jealous about their relationship, both still agreed between them to have Dr. Chuang perform dental treatment on Mr. LaPlante to obtain a $50 reward. The assertion by Mr. LaPlante that he needed dental care then, does not allay the oddness of their act.
Ms Farias Resigns
98Ms Farias asserts that she had contemplated resigning before May 2001. However, by late May 2001, she could not tolerate Dr. Chung’s behaviour, especially his touching, any longer. During the long weekend in May 2001, she had discussed the matter with Denise, a family friend, and at that time decided to resign. She had also informed her brother, Ross, and in turn, he informed her sister. She states that around May 25, 26 or 27, 2001, she wrote a letter, put the office keys in it, and dropped it in the mail slot of Dr. Chung’s office. Before doing so, she had obtained Ms Izzo’s contact information from the computer. Mr. LaPlante accompanied her at that time.
99Exhibit 1, Tab 6, is a copy of the letter Ms Farias states she had dropped off at Dr. Chuang’s office. The letter is dated May 28, 2001. The salient text is reproduced below, verbatim:
Dear Dr.. David Chuang:
Please accept this letter as my formal resignation, I unfortunately, cannot give you two weeks notice, my last day of employment was Saturday May 26/2001. Please forward my employment papers & any outstanding monies, owing to me to my home address.
I have enclosed my key to the office.
Lucy Farias
100Ms Farias states that her sister had informed her that Dr. Chuang called her house about five times and spoke to her sister, brother and father, and perhaps her mother too, enquiring after her whereabouts. Her sister informed her that she had recorded several messages from Dr. Chuang. Ms Farias entered a copy of a handwritten record, which is Exhibit 2.
101Exhibit 2 is a handwritten log of calls recorded by someone. The first record shows that on “29/5/01 – 9:30 pm”, someone had called the house looking for Ms Farias and asked why she was not at work and when she was coming back. Other entries show that at 30/5/01, 9:00 P.M., 10:30 P.M., and 11:00 P.M.; and 31/5/01, 4:30 P.M., the same male caller had called. Each time, he enquired after Ms Farias’ whereabouts. Exhibit 2 indicates that at “5 pm – Anna called back – please stay away from Lucy – Ross (brother) got angry & threatened dentist.” At “31/5/01 – later that evening – Cops came to door for Ross + Lucy”.
102The Tribunal is satisfied that Ms Farias’ sister, Anna, had made those recordings, and the caller was Dr. Chuang. The Tribunal accepts the content of Exhibit 2 as an accurate record of Dr. Chuang’s telephonic conduct to the Farias’ in his attempt to communicate with Ms Farias. Ms Anna Farias, who could have been a material witness, was not called to give evidence.
103Ms Farias states that the day after she had dropped off the letter of resignation and the key at Dr. Chuang’s office, the police came to her house and asked for her and her brother. She asserts that the officer told her that Dr. Chuang had called the police.
104At the time, she thought Dr. Chuang had called the police because he had not received her letter and his office key, and because her brother had threatened Dr. Chuang. She decided to write a note to Dr. Chuang, and faxed it to him, attaching a copy of her letter of resignation. The note states: “Dr. David Chuang I left this letter, Monday evening May 28, 2001, in the mail slot I don’t know why you have not received it. Lucy Farias.”
Ms Farias Contacts Peel Regional Police (Child Abuse and Sexual Assault Unit)
105Exhibit 1, Tab 12, is an Occurrence Synopsis, Incident #: 01091891, dated 2-Jun-2001 01:37:19 Badge: 2016 22D, which Ms Farias states she had obtained under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Pages 4 and 5 indicate, verbatim:
The victim quit her job on May 25th 2001 and returned the key to Chuang via mail slot at the dentists office. In an effort to keep communication lines open with the victim Chuang called police on Thursday May 31st 2001 in an attempt to get his key back (01-91347). Police investigated and it was determined that Chuang’s complaint was frivolous. On Friday June 1st 2001 at approximately 2:00 P.M. the victim attended 22 Division Peel Regional Police to make a report of sexual assault. Her family is unaware of what happened to the victim and she is trying to keep this occurrence a private matter from them.”
106The said Exhibit indicates that on “2001-06-26 00:47”, badge number 1516 CASA did a follow up on the complaint and made conclusions, which are reproduced below, verbatim:
The victim in this matter attended 301 Matheson Blvd, Mississauga, on the 25th of June 2001, and provided investigators of the CASA unit with a videotaped statement.
During the course of this investigation, it was determined that a criminal offence has not been committed.
It appears that her employer, Dr.. Chuang, did make advances towards her, but at no time did the victim convey to Dr. Chuang that his advances were unwelcome. Victim to seek resolution through the Human Rights Commission and the Medical/Dental Board.
This report to be filed as unfounded.
No VICLAS to be submitted.
107The Tribunal accepts the content of these documents as trustworthy evidence for three reasons. First, the documents are relevant to issues in dispute before the Tribunal. Second, there is no evidence before the Tribunal that these documents were not made in the usual and ordinary course of the police officer’s business and that it was not usual and ordinary for a police officer to make these records in the course of investigating a CASA complaint. Third, the Commission and the Complainant entered these documents into evidence to support their case; neither sought to modify or explain away any inconsistencies in the content of the documents.
108In assessing the evidence of Ms Farias and the police recording of her complaint, the Tribunal notes a discrepancy in the evidence concerning the extent of knowledge Ms Farias had told the police her relatives knew about Dr. Chuang’s conduct towards her. The discrepancy detracts from the clarity of her evidence about whom she had consulted and the scope of the information she had recounted to them about Dr. Chuang’s conduct. Also, it causes one to question why did her brother threaten Dr. Chuang if he had no knowledge about Dr. Chuang’s behaviour towards Ms Farias. The evidence before the Tribunal does not temper that discrepancy.
Dr. Chuang Withheld ROE and Termination Pay
109Ms Farias states that soon after she had resigned from Dr. Chuang’s employ, she tried to obtain her Record of Employment (“ROE”) from Dr. Chuang. She was unsuccessful. She filed a complaint the Ministry of Labour seeking her ROE and vacation pay. The Labour Standards Officer determined that Dr. Chuang “agreed [that he had] failed to pay” Ms Farias $396 termination pay, $291.12 vacation pay, and had levied administration fee of $100 against Dr. Chuang. (See Exhibit 1, Tabs 8 and 9). Ms Farias asserts that Dr. Chuang has not paid her these monies.
110The Tribunal accepts these documents as trustworthy evidence. The documents are relevant to issues of reprisal and remedy, which are in dispute before the Tribunal. In addition, there is no evidence before the Tribunal that these documents were not made in the usual and ordinary course of the Employment Standards Officer’s business and that it was not usual and ordinary for an Employment Standards Officer to make these records in the course of resolving this type of complaint. The Tribunal accepts Ms Farias’ evidence that she has not received these monies.
111The Tribunal finds that Dr. Chuang’s failure to give Ms Farias her ROE prevented her from benefiting from employment insurance benefits to which she was entitled.
112Nonetheless, the Tribunal takes judicial notice of the enforcement scheme under the Employment Standards Act, 2000, S.O. 2000, c.41, where upon issuing an Order against an employer to pay specific monies to a complainant, it refers that Order to a collection agency for enforcement. That enforcement agency has full statutory tools to collect the Order.
113The Tribunal takes the view, that it has no jurisdiction to enforce such an Order as part of its “make whole” remedy. To have taken the view that this outstanding ESA order can be enforced by the Tribunal is analogous to including a small claims court’s judgement as part of the Tribunal’s “make whole” jurisdiction.
114Ms Farias states that after she left Dr. Chuang’s employ, she was stressed and tried to obtain Employment Insurance. Because Dr. Chuang had failed to give her the statutorily prescribed ROE, she had to provide copies of her pay stubs and pay a fee of $100, but she did not receive a ROE.
115The Tribunal accepts this evidence. Dr. Chuang failed to attend the hearing to present evidence to explain away why he had failed to give Ms Farias the ROE. Thus, based on the fact that Ms Farias had resigned and failed to answer his telephone calls, it is reasonable to draw an adverse inference that Dr. Chuang intentionally failed to give Ms Farias vacation pay and the documents that would have enabled her to collect monies for her own interim financial support.
Dr. Chuang Refers Dental Bills to Collection Agency
116Ms Farias asserts that sometime in August 2001, she received by mail, several bills for dental services Dr. Chuang had done for her. In addition, she received numerous telephone calls from a collection agency demanding payment in excess of $8,000 for unpaid dental services performed by Dr. Chuang. She recounts that she received calls two to three times weekly for approximately four months. She states: “I was very upset when I received this.” When asked whether she had paid for any dental services before, she said: “No.” She reiterates that Dr. Chuang had informed her, at the onset of her employment, that she “had full dental coverage”.
117Exhibit 1, Tab 11, is a letter from Mrs. Caswell of CB of Peel collections, captioned “Default and Investigation Division”. The letter is dated “09/05/2001”; that date is September 5, 2001. Attached to that letter are six invoices with the inscription, “Queenstate Dental Care”.
118Invoice 2699, dated 27-Jan-2001, shows a balance due of $1,182.48 of which $132.48 represents interest. Listed on the invoice are three types of services: “(35) First tooth-Caries/Trauma/Pain Contro”; “(37) First tooth-Caries/Trauma/Pain Contro”; and “(36) Permanent three canals-Root Canal”, which were performed on “27-Jan-2001”.
119Invoice 3081, dated 9-Feb-2001, shows a balance of $1,655.46 of which $185.46 represents interest. Listed on the invoice are four types of services: “(43MBD) Three Surface-Acid Etched Anteriors”, “(44MODB) Four Surface-Acid Etched Bicuspids”, “(45MODB) Four Surface-Acid Etched Bicuspids”, and “(47) Permanent three canals-Root Canal”, all of which were performed on “9-Feb-2001”.
120Invoice 3082, dated 23-Feb-2001, shows a balance of $712.13 of which $67.13 represents interest. Listed on the invoice are four types of services: “(21DL) Two Surface-Acid Etched Anteriors”; “(22MFL) Three Surface-Acid Etched Anteriors”; “(36MOBL) Four Surface-Acid Etched Molar”; and “(36) Two Prefabricated Posts-Prefabricated Retentive”, all of which were performed on “23-Feb-2001”.
121Invoice 3083, dated “23-Mar-2001”, shows a balance of $395.10 of which $30.10 represents interest. Listed on the invoice are three types of services: “(47DOBL) Four Surface-Acid Etched Molar”; “(47) One Prefabricated Post-Prefabricated Retentive”; and “Emergency-Prescriptions”. The first two types of services were performed on “23-Mar-2001”, and the third was done on “24-Mar-2001”.
122Invoice 3084, dated 8-May-2001, shows a balance of $902.03 of which $52.03 represents interest. Listed on the invoice are two types of services: “Emergency”, “(47) Per Site-Allograph Osseous”, and one entry showing “Expenses”. All bear the date 8-May-2001. The last page of Tab 11 is a “Statement 7-Aug-2000 – 7-Aug-2001”. The statement shows a patient balance of $4,847.20 of which $467.20 represents interest. The statement represents the total amount of the invoices, 3081 to 3084, plus invoice 2699 for $1,050 with the date “1/27/01”. Also, there is invoice 2462 for $210.50 of which there was a $35 “adjustment . . .for professional courtesy”. For that invoice the date of service is “1/20/01”; a debit payment was made on “1/20/01”.
123Ms Farias asserts that just before the RCDSO’s hearing began, her father informed her that Dr. Chuang had showed up at their home and said he wished to speak to her. She was not at home. Also, her father had informed her that Dr. Chuang had told him that he had sent the bills for dental services to collection because Ms Farias had gone to the police.
124Mr. Farias was not called to give evidence, nor is their any documentary evidence from him. This evidence goes to a crucial element of the Commission’s and Ms Farias’ Complaint regarding reprisal; yet neither sought to call Mr. Farias to give viva voce evidence or adduced documentary evidence from him. It is apparent that Mr. Farias is a material witness who had knowledge of a material and relevant fact. One would assume that Mr. Farias would be willing to assist his daughter in pursuing such a significant matter.
125There is no evidence before the Tribunal that Mr. Farias was not ready, willing or able to attend the hearing. Nonetheless, the Tribunal is not inclined to draw an adverse inference that his evidence would have been contrary to Ms Farias’. (See The Law of Evidence in Canada, at para. 6.321).
126On its own, the Tribunal is not inclined to give much weight to the double hearsay evidence of Ms Farias that her father told her that Dr. Chuang had admitted to him that Dr. Chuang had sent the bills for Ms Farias’ dental service to a collection agency because Ms Farias had contacted the police. In assessing the probative value of the invoices, the Tribunal has made several observations, which, on the balance, are telling.
127Invoice 2462 is the only invoice for which any payment has been made. The service, date of invoice and payments were done on January 20, 2001: before Ms Farias had received a job offer or began to work for Dr. Chuang. Invoices 3081 to 3084—oddly, in numerical sequence yet not close in numerical sequence to invoices 2462 and 2699—are dated after Ms Farias began to work for Dr. Chuang. If Dr. Chuang had intended that Ms Farias should have paid for dental services after she became his employee, he should have prepared invoices for the dental services he had performed for her at each appointment: just as he did for the first treatment. Invoices 3081 to 3084 defy that method. The consecutiveness of the invoices 3081 to 3084 suggests that they were prepared at the same time. The inference drawn is, given the sequence of the numbers assigned to the invoices, they were not only prepared at the same time, but also well after services had been rendered. The Tribunal is mindful that those invoices could have been reproduced. However, the fact that items of accumulative interests are listed on each invoice, support this conclusion.
128And then there is invoice 2699 dated January 27, 2001. Although it is closer in sequence to invoice 2462, it indicates interest from March 1, 2001 to August 1, 2001. The Tribunal notes that January 27, 2001, was a Saturday, and is the date Ms Farias states she began her employment with Dr. Chuang. Also, the Tribunal notes that Saturday, January 20, 2001, was the date of Ms Farias’ first dental appointment with Dr. Chuang. The Tribunal is inclined to conclude that this invoice is not different from the 3000-series invoices: prepared under a pretext of collecting overdue bills for dental services rendered to Ms Farias.
129Indeed the Tribunal is mindful of the possibility that Ms Farias could have wittingly failed to prepare bills for dental services she had received from Dr. Chuang even though he had not offered her full dental coverage. However, there is no evidence before the Tribunal that she was charged with the responsibility to prepare bill for the services she received from Dr. Chuang and had failed to do so. The Tribunal accepts Ms Farias’ evidence that Dr. Chuang did not give her bill for the dental services he had performed on her.
130It is curious that not until September 2001, after Ms Farias had contacted the police, RCDSO, and the Commission, Dr. Chuang sent the invoices to collection. When Ms Farias’ double hearsay evidence is connected with the foregoing observations, the Tribunal is inclined to conclude that Dr. Chuang created those invoices specifically to send to collection because Ms Farias had made several complaints about his conduct, including making a formal report to the Peel Regional Police.
131The Tribunal finds that the total amount of bills for dental services as evidenced before it is $4,847.20 and not $8,572.33 as claimed by the Commission—see paragraph 4 of the Commission’s written submissions.
Anonymous Telephone Calls
132Ms Farias avers that in August 2001, she received several calls on her cell phone from Dr. Chuang, usually in the early mornings, around 04:30 to 05:30 hours. She avers that she recognised the telephone number; it was the same number, which Dr. Chuang had given her to use to make long distance calls during her employment at his office. He had given her that number. She describes the logistics of using that number: when one dials the number, there would be a recording—something like an advertisement—before one is connected to the party being called.
133Ms Farias states that she did not recognise the caller’s voice. Ms Farias asserts that the calls included “weird voice sounds”; comments such as, “you fucking bitch. I’m going to fuck you . . .you slut”. She had contacted the police, informed them of the content of the messages, but the police did not listen to the tape. She states that the police told her he would speak to Dr. Chuang, but he could not lay any charge because the messages were not threatening.
134The affiant, Mr. LaPlante, states that he “also heard one message left for Ms. Farias in August 2001. It was a male voice, belonging to a middle-aged person. The caller told Ms. Farias that he “’was going to fuck her’ and that she was a ‘fucking whore’”. Mr. LaPlante declares that he believed the voice to be “Dr. Chuang[’s] in part because I cannot think of anyone else who would do this to Ms. Farias”. (See affidavit, para. 20).
135There is no evidence before the Tribunal that the telephone number, which Ms Farias says she identified as the same number Dr. Chuang had given to her to make long distance calls, was a number that had been assigned exclusively to Dr. Chuang. As Ms Farias admits, it is a number the general public has access to and uses to circumvent paying long-distance telephone calls. Second, neither Ms Farias nor Mr. LaPlante was able to identify the voice as Dr. Chuang’s. Third, neither the Commission nor Ms Farias has established a link between the calls and Dr. Chuang, except to say he had given Ms Farias that telephone number to make long distance calls.
136Having heard all the evidence, the Tribunal concludes that this allegation is no stronger than it was in the Farias motion. As the Tribunal states in its Farias Interim Decision, there is no evidence before it “that [Ms Farias] had called back and [Dr. Chuang] had answered, or that she had answered the telephone and was able to identify [Dr. Chuang’s] voice through that contact”. (See Farias No. 1).
137Further, there is no evidence before the Tribunal that the police spoke to Dr. Chuang; or evidence about the content of the conversation between Dr. Chuang and the police, if the police spoke to him at all. The Tribunal notes that Exhibit 1, Tab 12, the police information Ms Farias obtained, does not include any activity or comments regarding this allegation. That the calls stopped after Ms Farias said she had spoken to the police, could be no more than a coincidence.
138The Tribunal is not persuaded that those calls are anything more than anonymous telephone calls. The Tribunal is not persuaded and thus, not inclined to find, without more, that on the balance, Dr. Chuang had made those calls. Further, the Tribunal will not import the adverse inference principle to make a conclusion in favour of the Complainant because neither the Commission nor Ms Farias has established, on the balance, that Dr. Chuang made those calls.
Impact of Dr. Chuang’s Conduct on Ms Farias
139Ms Farias believes she had heard about the Commission from Dr. Faux, a doctor from whom she has been receiving treatment since 1998. In response to the Commission agent’s enquiry about the impact of Dr. Chuang’s conduct had on her, Ms Farias asserts that around the conclusion of the RCDSO’s hearing, Dr. Faux had told her that she was suffering from Post-traumatic Stress Disorder (“PTSD”). She asserts that she had visited Dr. Faux many times during her employment with Dr. Chuang. She states that Dr. Faux had prescribed medication for anxiety during Dr. Chuang’s disciplinary hearing.
140There is no evidence before the Tribunal about the type or extent of the treatment Ms Farias received or continues to receive from Dr. Faux. Nor is there any medical evidence properly before the Tribunal to show that there is a causal nexus between PTSD and this complaint. Dr. Faux was not called as a witness nor was there any documentary evidence from Dr. Faux.
141Evidence about the severity of the impact of Dr. Chuang’s conduct on Ms Farias is the gravamen, which shapes the extent of the remedy. Thus, this evidence is material and so is the witness. There is no evidence before the Tribunal that Dr. Faux was not ready, willing or able to help Ms Farias.
142Thus, without evidence from Dr. Faux or other doctor, the Tribunal is not inclined to ascribe any weight to Ms Farias’ evidence with respect to the diagnosis of PTSD. This evidence is medical in scope; Ms Farias is not qualified to give medical evidence. The Tribunal draws an adverse inference because of the Commission’s and Ms Farias’ failure to call Dr. Faux as a witness or provide any affidavit evidence from him or other doctor.
143In addition, Ms Farias states: “This whole experience is distressful emotionally, and mentally.” She had experienced insomnia, had nightmares and has had “flashbacks”. She states that Dr. Chuang had taken advantage of her, and it is important for her to do something for herself. Further, she did not want Dr. Chuang to do this to any other woman or girl. She states: “I want my life back. I don’t want my sister to worry when I take my nieces to a movie or on the bus because Dr. Chuang is there.”
144Ms Farias asserts that Dr. Chuang’s conduct had affected her relationship with Mr. LaPlante. She did not elaborate on how their relationship was affected or the extent of the impact on their relationship. Also, Ms Farias says that her interaction with dentists has been affected. Specifically, she experiences anxiety and breathes heavily when receiving dental care. It is not clear whether that repercussion is a result of Dr. Chuang’s conduct or because he had performed unsatisfactory work on her teeth, or both.
145In his documentary evidence, at paragraph 27, Mr. LaPlante asserts that Ms Farias’ experience while working for Dr. Chuang caused her “high levels of discomfort, stress and anxiety”. He states that Ms Farias had told him that since her employment with Dr. Chuang, she has trouble trusting male employers. Also, she had told him that she becomes “so anxious when she assists a dentist or receives dental services that she has trouble breathing”.
146Mr. LaPlante states that Ms Farias had trouble sleeping during and after her employment with Dr. Chuang. He avers that he knows this because Ms Farias often called him late at night when he was working on the night shifts. In addition, at paragraph 30, he states: “It is my belief that Ms. Farias’ employment experience with Dr.. Chuang had some negative effect our [sic] romantic relationship. It upset [sic] me that Dr.. Chuang wanted to date Ms. Farias.”
147The Tribunal accepts this evidence of Ms Farias and Mr. LaPlante.
The RCDSO Complaint and its Effect on this Case
148Ms Farias lodged a complaint to the RCDSO soon after she had resigned from Dr. Chuang’s employ. It is enough to say that the hearing was well publicised and that the College made findings, and an order against Dr. Chuang.
149Notably, in the adjudication of this Complaint, the Tribunal will not take into account anything with respect to the RCDSO’s disciplinary hearing because it is statutorily prohibited to do so. Specifically, subsection 36(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c.18 stipulates:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
150Secondary to that prohibition and the Tribunal’s ruling, in the adjudication of this case, the Tribunal will not take into consideration any attendant repercussions, which Ms Farias might have experienced with respect to the complaint to the RCDSO. The Tribunal finds that the complaint to the RCDSO, and any impact Ms Farias might have suffered with respect to Dr. Chuang’s disciplinary hearing are intervening causes to the Complaint before the Tribunal, and any impact Ms Farias might have suffered as a result of any infringement of her rights under the Code.
Findings on Similar Fact Evidence Rule
151At this juncture, the Tribunal notes that neither the Commission nor Ms Farias formally established the process for the Tribunal to deal with the “similar fact evidence rule” or whether it would admit the proffered similar fact evidence. At some point during the hearing, the Commission did inform the Tribunal that it would not be presenting witnesses to lead similar fact evidence.
152The Commission called its investigator, Ms Devika Mathur, to give evidence on its behalf. The Commission proffered her evidence as the factual underpinning for its similar fact evidence. Ms Mathur’s evidence is about her interview with HD. Largely, it is about how and when HD met Ms Farias, which was in 2003 at the RCDSO hearing; HD’s experience with Dr. Chuang; and the RCDSO hearing against Dr. Chuang.
153Ms Mathur states that she was assigned to investigate the Farias case. She states that it is the ordinary and usual habit during her investigation, to record information gleaned from her interviewees.
154In the course of investigating this case, she had interviewed a woman named H. DaPrato (“HD”). She had decided to interview HD because Ms Farias had given her HD’s name. She interviewed HD after she had interviewed Ms Farias. Both women met for the first time at Dr. Chuang’s disciplinary hearing before the RCDSO. It is important that the Tribunal repeat at this juncture that there is a statutory prohibition to use anything from that disciplinary hearing in this hearing. However, the Tribunal is mindful that nothing in subsection 36(1) precludes the Commission from interviewing or calling any witness who had given evidence at the RCDSO’s hearing or proffering that evidence to the Tribunal.
155Ms Mathur states that she made electronic notes contemporaneously with the interview of HD. She then transcribed the notes and sent them to HD for confirmation, modification or signing, and finally, the written transcript was returned to her; that became HD’s Statement (the “Statement”).
156At the onset of her testimony, Ms Mathur states that she had no “independent recollection” of her interview with HD. However, after allowing her the opportunity to read the Statement, she says that her memory was refreshed. While an attempt was made to enter the actual written Statement as documentary evidence, the request was not made as a business record exception under the hearsay rule. For those two reasons, the Tribunal did rule that only Ms Mathur’s oral information would be deemed evidence.
Application of the Similar Fact Evidence Rule
157Under subsection 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), and Rule 64 of the Tribunal’s Rules of Practice, July 2004, the Tribunal has discretion to admit hearsay evidence. Further, the Tribunal has the discretion to determine whether to give any weight to that evidence once admitted. Notwithstanding, the Tribunal had taken the decision to not attribute any weight to Ms Mathur’s evidence: neither within the purview of ordinary evidence nor the similar fact evidence rule. The reasons are many.
158Before stating the reasons for that ruling, the Tribunal turns to address the fundamental principles that ought to apply in human rights cases where similar fact evidence is proffered to determine an issue before it.
159The principle in criminal law that evidence tendered solely to prove that general disposition or propensity to have done the act in question is not admissible, applies equally in human rights cases: (See The Law of Evidence in Canada, para. 11.186). Perhaps it is because invariably, similar fact evidence impugns one’s propensity or general disposition that it is admissible if and only if the circumstances are exceptional. It follows therefore, that the person who proffers similar fact evidence must prove that the circumstance is exceptional or extraordinary.
160Similar fact evidence is excluded notwithstanding the general rule that all relevant evidence is admissible: R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481, para. 37.
161The Supreme Court of Canada is consistent in ruling that similar fact evidence may be admissible only in exceptional circumstances. See, e.g., R. v B. (C.R.), [1991] 1 S.C.R. 717 (S.C.C.); R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; and Handy. The admission of evidence that solely shows propensity or general disposition, while generally inadmissible, “may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury”. (Handy, at para. 52, citing B. (C.R.) at p. 732).
162In assessing the probative value of similar fact evidence, the trier of law has the obligation to determine, on the balance of probabilities, that the evidence of similar facts is not tainted with collusion. The determination about whether there was collusion “is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends”: Handy, at para. 110. The onus of proof is on the party (in this case the Commission) who seeks to proffer similar fact evidence, Ibid., paras. 112 and 113: not the respondent.
163That the admissibility of similar fact evidence is permissive, as opposed to prescriptive, implies that there is no particular approach one must follow in determining whether to exercise the discretion to admit similar fact evidence, or ascribe any weight to it. It follows that even if the evidence has probative value, is relevant in determining the matter in issue or is not oppressive or unfair to the respondent, a trier of fact may still take the decision to not admit it. However, a trier of fact and law has no discretion to admit similar fact evidence if the prejudicial effect of the evidence outweighs its probative value: Handy at para. 153.
164The Tribunal now turns to explain why it has taken the decision to not give any weight to proffered similar fact evidence of any of the witnesses: Ms. Izzo, Stafford, Mathur, or indirectly HD.
Ms Mathur’s Evidence
165First, Ms Mathur’s evidence consists of double hearsay. The category of her evidence gives rise to general concerns about the credibility of HD, and the reliability of the indirect evidence from HD. The Tribunal was not given the opportunity to test the credibility of the declarant or the reliability of her evidence to determine whether those allegations occurred or whether there was a possibility that her evidence could have been tainted by collusion. Tainted evidence deprives similar fact evidence of its probative value. As noted above, it is the duty of the Tribunal to determine whether the prospect of tainting exists.
166The Tribunal makes no finding whatsoever about the veracity of HD’s allegations about Dr. Chuang.
167More specifically, Ms Mathur’s evidence is about HD’s encounter with Dr. Chuang, and information that Ms Farias had recounted to HD. The Tribunal acknowledges that Ms Mathur’s evidence was gathered in the ordinary course of her job as an investigator, and it was ordinary and usual for her to record interviews. Yet, that process does not cure the concerns about credibility, reliability and tainting, which are inherently present because of the medium, which led this evidence before the Tribunal.
168There is no evidence before the Tribunal that HD was unable, unwilling or not ready to attend the hearing on the merits of this case to assist the Commission or Ms Farias. One is left to draw the inference that neither the Commission nor Ms Farias regarded HD’s evidence as material or the circumstances so extraordinary to call her to give oral or affidavit evidence. Also, not calling HD to give oral or affidavit evidence begs the question, why should a trier of fact admit the evidence or ascribe any probative value to it.
169Second, Ms Mathur’s evidence places Dr. Chuang’s character and propriety of conduct squarely into question. There is no doubt that Ms Mathur’s evidence, which essentially is nothing more that a précised recitation of the story HD had recounted to her, is about Dr. Chuang’s propensity to treat women—patients or employees—the same way. The Commission’s purpose for adducing this evidence is made clear at paragraph 48 of its written submissions:
The evidence of Dr. Chuang’s treatment of [HD] Mss. Izzo and Stafford is of great probative value, as it reveals a patter of conduct. The testimony is evidence that Dr.. Chuang treated [HD] Mss. Izzo and Stafford in a strikingly similar fashion as he treated Ms. Farias. Their treatment at the hands of Dr. Chuang commenced as name-calling, and rapidly escalated into sexualized conversations, repeated touching and ultimately to persistent sexual advances. When his sexual advances were rebuked, Dr. Chuang became very angry and aggressive, subjecting [HD] Mss. Izzo and Stafford to acts of reprisal.
170Further, at paragraph 49 the Commission submits: “Dr.. Chuang refused to participate in the hearing on the merits and effectively waived his right to cross-examine the witnesses. As such, the evidence of the treatment of [HD] Mss. Izzo and Stafford remains uncontradicted.”
171Based on the Commission’s evidence and submissions, the Tribunal concludes that the Commission seeks to have the similar fact evidence admitted for one reason: To show that Dr. Chuang has a general disposition, not only to prey on women, but also that he uses the same mode of behaviour to do so.
172There is the deduction that the evidence was proffered on the basis that the issue is credibility. Even so, the Tribunal is satisfied that the dominant reason for the proffered evidence is to establish general disposition or propensity. As the Supreme Court of Canada states in Handy at paragraph 116, “[i]dentification of credibility as the ‘issue in question’ may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”).
173/The Commission submits that the strict rules of admissibility enforced in criminal trials do not apply to human rights proceedings. It argues that the Tribunal can admit and act on hearsay or similar fact evidence. Further, the Commission submits that the admissibility of similar fact evidence is discretionary. The Commission points to Olarte v. Commodore Business Machines Ltd. (1983), 1983 CanLII 4712 (ON HRT), 4 C.H.R.R. D/1399 at para. 12061 (Ont. Bd. of Inq.) aff’d (1984), 6 C.H.R.R. D/2833 (Ont. Div Ct.), where the evidence was admitted because it was held to be directly related to the issue of pattern of conduct.
174It is clear, however, that where as here, similar fact evidence tending solely to show a general disposition to do an act ought not to be admitted or let alone given any probative value. Relying on Sopinka’s text cited above, that Olarte does not apply to this case.
175The Commission failed to establish the proper foundation and conditions for the Tribunal to determine whether the proffered similar fact evidence has any probative value. On the evidence proffered, the Tribunal is not confident that the necessary inferences can be drawn to satisfy the requisite test for the admissibility of this proffered similar fact evidence, let alone ascribing any weight to it.
Ms Farias’ Evidence about Mss. Izzo’s and Stafford’s Experience
176As in the case with Ms Mathur’s evidence, the Tribunal has decided to not give any weight to Ms Farias’ recitation of the stories she avers Ms Izzo and Stafford recounted to her, even in light of subsection 15(1) of the SPPA, and Rule 64. The Tribunal has taken into consideration Ms Farias’ evidence that she had made contemporaneous notes during her conversation with Ms Izzo and Stafford.
177In this case, it would be counterintuitive to attribute any probative value to that evidence, and yet exclude it as similar fact evidence. The Tribunal did not have the opportunity to test the credibility of the declarants; to test the reliability of their stories; or to determine if there was the prospect of collusion. The Tribunal would be remiss to admit this hearsay evidence as similar fact evidence, especially because it is led by the complainant as opposed to Ms Izzo or Stafford, orally or by affidavit evidence.
178As the Supreme Court of Canada states in Handy, the potential of tainting is always a serious consideration in the assessment of the probative value of similar fact evidence because collusion may deprive similar fact evidence of most of its probative value. In addition, to ascribing any weight to this hearsay evidence incidentally, would bolster the credibility of Ms Farias. To paraphrase Binnie J., credibility is a common thread that weaves through most hearings, and ultimately may amount to a determination of liability or no liability.
179Invariably, credibility is a live issue in sexual harassment cases, and that issue looms largest, where as here, there is no witness to the incident except the alleged perpetrator and the complainant. In such circumstances, similar fact evidence would seem to be a backdoor attack on the respondent’s character.
180Invariably, bolstering a complainant’s credibility incidentally disparages a respondent’s character. In Binnie J’s apt words at paragraph 116 in Handy: “Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant.”
181With that in mind, the concern to ensure that the proffered similar fact evidence is admissible or the appropriate weight to be ascribed to it, is critical. In that context, viva voce evidence is essential. Thus, similar fact evidence ought not to be led by anyone—especially a complainant who is not the victim—except the declarant as a witness at a hearing, or at the very least affidavit evidence, with the affiant available for cross-examination. That is the best form for a trier of fact to carry out the critical assessment: to test the credibility of the declarent and the reliability of the witness’s evidence, and determine whether there is tainting.
182There is no evidence before the Tribunal that Ms Izzo or Stafford or both were unable to attend the hearing or were subpoenaed and were not ready, willing or able to attend the hearing. Again, if the Commission or Ms Farias believed that their evidence was relevant or material, it was open to either or both to call them as witnesses or subpoena them.
183The Tribunal had no opportunity to observe the witnesses. It had no ability to assess the witnesses’ ability to describe clearly what they recounted to Ms Farias they had experienced. The Complainant—the medium by which the proffered similar fact evidence was led in this case alone heightens the potential prejudicial effect and diminishes any probative value it might have had, so much so, that the probative value is nugatory.
184Extrapolating from Handy at para. 153, a trier of fact ought not to ascribe any weight to similar fact evidence if the prejudicial effect of the proffered similar fact evidence outweighs its probative value.
185Again, it matters not whether Dr. Chuang was at the hearing to cross-examine Ms Farias. His non-participation in the hearing does not oust those basic requirements. The duty to ensure that similar fact evidence is properly admitted and that it be given the appropriate weight is solely within the jurisdiction of the trier of fact, and is not determinative on whether the respondent participates by cross-examining the declarant.
186In sum, the Tribunal is not inclined to tell parties how to plan their litigation tactic or strategy, but it seems rather odd that neither woman was called to give “similar fact evidence”. Both had worked for Dr. Chuang and averred they had experiences similar to Ms Farias. Their evidence was adduced through Ms Farias’, which is hearsay. The Tribunal concludes that Ms Mathur’s evidence is no more than an oath-helper, in some cases thrice removed. And even though this evidence was gleaned in the course of Ms Mathur’s duties as an investigator, it has less probative value than the “similar allegation evidence” that would have been given by either woman had either appeared at the hearing to give oral evidence.
187Indeed Dr. Chuang was not present at the hearing, yet it is speculative to infer that if he had been given proper notice that the Commission would adduce similar fact allegations through witnesses, he would not have attended to cross-examine any of the three women. The fact that he did not attend the hearing should not affect the Tribunal’s conclusion.
188In Handy, para. 136, Binnie J. states that “[i]f the proffered similar fact evidence is not properly capable of supporting the inference sought. . .the analysis generally need go no further”. Thus, since the Tribunal concludes that it is unable to ascribe any probative value to the similar fact evidence because of the media by which it was presented, its inability to test the credibility and reliability of the declarant and their evidence, the Tribunal will not proceed any further with an analysis of similar fact evidence.
The SPPA Negates Character Evidence
189The Commission adduces the evidence of HD, Ms Izzo and Stafford to show that Dr. Chung has a general disposition to sexually harass women who worked for him. Whether the evidence is presented as similar fact or allegation or to show the extrinsic misconduct of Dr. Chuang, it puts his character in issue. The Tribunal has dealt with the impact of the evidence to bolster the Complainant’s credibility or to blacken the Respondent’s character above at paragraphs 162 to 167.
190There is no evidence before the Tribunal that due notice was given to Dr. Chuang as required by section 8 of the SPPA. Section 8 states: “Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.”
191The Commission submits that Dr. Chuang had ample notice of these allegations because on July 8, 2004, the Commission had disclosed HD’s statement, and Ms Farias’ transcript of her conversation with Ms Izzo and Stafford to him.
192The Tribunal does not accept the Commission’s submission. Including information in disclosure does not meet the requirement of section 8 of the SPPA. Where as here, a party seeks to place in issue the character of another, specific notice ought to be given. Dr. Chuang’s failure to participate in this proceeding does not vitiate that statutory requirement.
193The Tribunal recognises that it can be a horrid experience for a complainant to follow through on a sexual harassment complaint. On the other hand, the Tribunal recognises that there is an inherent stigma, which attaches to anyone accused of sexual harassment. Thus, the impact on the parties makes it more pressing for a Tribunal to engage in neutral and transparent objective assessment of all the evidence.
ANALYSIS
194The Tribunal deals with the issue of sexual harassment first because almost invariably a determination of sexual harassment simultaneously will lead to a decision on the issue of discrimination on the basis of sex or gender if you will.
Was the Complainant’s right to freedom from sexual harassment in the workplace because of sex by her employer infringed contrary to subsection 7(2) of the Code?
The Law
195Subsection 7(2) of the Code states: “Every person who is an employee has a right to freedom from harassment because of sex by his or her employer or agent of the employer or by another employee.”
196Subsection 7(3) states: Every person has a right to be free from,
a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
197It is useful at this point to set out the schema of subsections 7(2) and 7(3) of the Code and the difference between them and the rest of the numerated grounds under the Code. These two subsections enunciate the standard imposed on a complainant and a respondent in the workplace. Generally, in establishing a prima facie case, one need not prove intention or motive. By clearly requiring actual or objective knowledge, by necessary implication, the Legislature has graphed on intent, recklessness or wilful blindness as the test to be met to establish the elements of an infringement of subsections 7(2) and 7(3). The actual or objective knowledge is imputed in subsection 7(2). This introduces a binary: the elimination of sexual harassment in the work place, and protection of the complainant and the respondent. The first prong needs no explanation; the second needs explanation.
198The Legislature recognises the fear of retaliation an employee may experience by informing someone in her or his workplace, especially one in authority, that his or her conduct is unwelcome. On the other hand, the Legislature recognises —as well as the
Supreme Court of Canada in Blencoe3--the inherent stigma, which attaches to a serious allegation of sexual harassment. Thus, it has established a scheme, which acts as a sword or a shield for the complainant or the respondent, respectively. The complainant can inform the alleged perpetrator that her or his sexual advance or solicitation is unwelcome without fear of retort. And, where there is reprisal or threat, there is statutory redress. Without that protection, a complainant may not be able to assert her or his right or prove that the conduct was unwelcome, for invariably, the defence will be that the victim did not communicate that the conduct was unwelcome.
199Therefore, within that binary scheme, it is not enough for a complainant to give a “hint” to someone whose conduct he or she finds unwelcome. (See para. 209 below). The inherent nuance of a hint could be lost on one who is not alert to know that the hint is personal to her or him. Further, it is not enough to show the conduct made her or him uncomfortable.
200In determining whether a complainant’s right to be free from sexual harassment has been infringed, the courts, boards of inquiry and this Tribunal state that unwanted touching constitutes sexual harassment. (See e.g., Janzen v. Platty Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252; and Impact Interior Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.).
201By necessary implication, in this case, the complainant must clearly indicate to the respondent that the conduct is unwelcome. It is the knowledge or imputed knowledge that the conduct is unwelcome, being reckless or being wilfully blind to the fact that a complainant does not wish to be touched, which leads to a finding of sexual harassment.
202When one understands that touching is unwelcome and still touches, the inference can be drawn that the person had the intention to touch or that person is being reckless or wilfully blind. Thus, the form of communication used by the complainant to indicate that the conduct is unwelcome—verbal, physical or otherwise—and the conduct of the respondent must be assessed objectively within the context of the work environment. That approach is necessary, especially when the conduct, viewed within the light of public awareness of what constitutes sexual harassment, is not so grave.
203It is apposite to state at this juncture that the test ought not to be conflated with Dr. Chuang’s professional obligation to his employees or patients. For while a dentist or other professional might breach her or his professional duty by engaging in a consensual relationship with an employee or patient, that is not a breach of the Code. Similarly, even if allowing Ms Farias to extract teeth or administer certain treatment to patients is a breach of Dr. Chuang’s professional duty that is not a violation of the Code.
204Applying the above to the facts, the Tribunal concludes that some of Dr. Chuang’s actions constitute sexual harassment; others do not. The acts that do not constitute sexual harassment are dealt with first to show the sequential pattern leading to those acts, which constitute sexual harassment. Those acts must be assessed within the work environment, including the genesis of the working relationship.
205Ms Farias states that she found Dr. Chuang’s referring to her as “juicy Lucy”, “sweetheart”, and “honey” caused her to feel “uncomfortable”. In response, she “gave him a disapproving look”. Her evidence is, “he did notice, but [she didn’t] think he understood in [her] opinion.” When he showed her the profiles of naked men and women, who were well endowed, by her own evidence, he seemed to have shown it to her as a joke. While she felt “uncomfortable” and thought his showing her those profiles was a “little odd” (as opposed to objectionable), she did not indicate to Dr. Chuang that his conduct was unwelcome. Similarly, Ms Farias did not tell Dr. Chuang that his consistent calling her at home for chitchats; his invitations to dinner, to concerts and vacation; his awkward overtures of touching and eating her leftover morsel of chicken; and his invitations to lunch were unwelcome. Dr. Chuang’s behaviour must be viewed side-by-side with Ms Farias’ reactions or lack thereof, and Dr. Chuang’s comments as presented by Ms Farias.
206Regarding Dr. Chuang’s continual telephone calls to Ms Farias’ home, there is no evidence before the Tribunal that at the onset, she had asked him to stop calling her. When Dr. Chuang invited her to dinner, Ms Farias’ rejection was in the form as an excuse: she had other plans. Such an answer may leave a persistent suitor to determine to keep trying until he or she wears down the person into accepting his or her overtures. This is especially true in this case where Ms Farias accepted Dr. Chuang’s Valentine’s Day amorous mementoes and excused herself from a Valentine’s Day dinner invitation by saying she was “going to a friend’s house.” Dr. Chuang’s comment to Dr. Han, which Ms Farias states that she overheard at the lunch in February 2001, (that he, Dr. Chuang, does not handle rejection very well), suggests that he was engaged in a romantic pursuit of Ms Farias. While the inference may be drawn that Dr. Chuang was aware that his overtures were being rebuffed, the Tribunal is not convinced that he interpreted her actions as indications that his behaviour was unwelcome within the context of sexual harassment.
207According to Ms Farias’ evidence, from the time she began her employment with Dr. Chuang until sometime in April 2001, she had accepted rides home from Dr. Chuang. During that time, Dr. Chuang had also caressed her around her waist for a “few seconds”; he had given her gifts at Valentine’s Day, which she accepted; he had made “moaning or groaning sounds” and put his arms around her waist in February /March 2001; and had touched her hand while in the operatory. Not conveying clearly that his conduct was unwelcome, and continuing to accept rides from Dr. Chuang likely led him to believe that there was still a chance that his overtures would be successful.
208The evidence about Ms Farias’ transportation from work and the incidents, which occurred at least a couple times, when Dr. Chuang was taking Ms Farias home, supports the Tribunal’s conclusion. Ms Farias’ and Dr. Chuang’s reactions to that incident are telling.
209In April 2001, while Dr. Chuang was driving Ms Farias home after work, he tried to hold her hands. She put her hands in her coat pocket and at that juncture Dr. Chuang put his hand on the “inner part of her thigh”. Exhibit 1, Tab 5 at p. 2, is a partial journal, which Ms Farias asserts she kept at the relevant time. It states that Dr. Chuang “had put his hand on [her] leg”. The entry for that day is reproduced below, verbatim:
April 14.01. I’ve decided to ask my dad to pick me up from work from now on. Last Thursday, he drove me home from work and he tryed again to hold my hand, I’m very uneasy & uncomfortable, this way, he can’t anymore and he can’t put his hand on my leg when he drives me home, anymore.
210The Tribunal notes that the “Thursday” referred to in the entry was April 12, 2001. The entry was made on Friday, April 13, 2001. The April 13, 2001 entry, which Ms Farias annotates the “first entry”, states: “even the night before he called and asked me to go to Niagara Falls with him shopping he does not take a hint. I have plans is what I told him, and he still called again that day (fri).” There is no mention of the April 12, 2001 incident: no reference to the “touching of the leg”. On its face, that seems odd: the journal was Ms Farias’ private record to which no one else had access, a medium where Ms Farias sought refuge to express her feelings candidly. (See para. 76 above).
211Ms Farias’ evidence is from that day onward, she did not take any more rides from Dr. Chuang; she took a taxi home or had her father pick her up. In response, Ms Farias states that Dr. Chuang had remarked to her in a sharp angry tone: “You don’t take rides home . . .don’t you like me anymore?” By inference, the evidence connotes that Dr. Chuang felt that Ms Farias had liked him.
212On the one hand, by inference Dr. Chuang’s reaction indicated that in his mind, he was engaging in romantic pursuit. It is interesting to note Mr. LaPlante’s diction in expressing his objection to Dr. Chuang’s conduct. He states that it had upset him that Dr. Chuang wanted to date Ms Farias, implicitly, because they were dating at the time.
213In this case, the Tribunal is mindful that the perception of the respondent is valid and must be viewed within the context of the work environment. The Tribunal concludes that within that work environment, Dr. Chuang’s perception was reasonable.
214However, Ms Farias’ refusal to take rides from Dr. Chuang from that day onward, and his awareness of it, ought to have made it clear to him that his behaviour was unwelcome. That ought to have disabused him of any notion he held that Ms Farias was shy, coy or accepting of his overtures.
215The Tribunal has given some weight to the Peel Regional Police CASA Unit’s Report entered into evidence by the Commission: Exhibit 1, Tab 12. The initial intake was June 2, 2001: a few days after Ms Farias had resigned. The investigation concluded on June 26, 2001: months before Ms Farias had filed a formal complaint to the Commission or the RCDSO, and several years before the Tribunal’s hearing on the merits.
216The report concluded that Dr. Chuang “did make advances” to Ms Farias, “but at no time” during her employment with Dr. Chuang did Ms Farias “convey to Dr. Chuang that his advances were unwelcome”. Ms Farias was to seek resolution through the Human Rights Commission and the “medical/dental board”.
217Based on the evidence, the Tribunal has determined that Dr. Chuang’s conduct after the incident in April 2001 constitutes sexual harassment. The Tribunal concludes that when Dr. Chuang placed his hand on Ms Farias “behind”; when he called her at home the day after that incident and asked her to watch the “Weakest Link” television show, especially after she had set boundaries about calling her at home and how to go forward if she returned to work; when he yelled at her in the presence of her boyfriend when the loonie had fell into her coffee; when he made a complaint to the Peel Regional Police about Ms Farias (in the police’s view “to keep communication lines open”) under the pretext of trying to obtain his office key; and when he kept calling her house after she had resigned from his employment: all those acts have met the necessary elements of sexual harassment within the rubric of subsection 7(2) and section 9 of the Code.
Was the Complainant’s right to equal treatment with respect to employment without discrimination because of sex infringed? Subsection 5(1)
218The Tribunal answers this question in the affirmative. It is clear from the evidence that Dr. Chuang’s overtures and sexual harassment toward Ms Farias was with respect to employment. Also, his carnal or romantic desires toward Ms Farias were triggered by his optical carnality of her: she is a woman and especially one who, in his mind’s eye, looks like Sandra Bullock, a movie star for whom he might or might not have had sensual fantasies.
Was the Complainant’s right to be free from sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to the Complainant where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome: (paragraph 7(3)(a)); or
Was the Complainant’s right to be free from reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advance to the Complainant? (paragraph 7(3)(b))
219The Tribunal answers the first part of the question in the affirmative. It is clear on the evidence that Dr. Chuang was Ms Farias’ employer. He was a sole practitioner who carried on business as Queenstate Dental Care. For the most part, only he and Ms Farias were engaged in the operation of his dental office. He paid her wages and had the authority to hire her (which he did) and fire her (which he did constructively), and the power to determine her wages. According to the facts, he was even influential in determining the form in which she would be paid, and the financial institution with whom she would deal with respect to her wages.
220Based on the Tribunal’s conclusions in paragraphs 217 and 218, the Tribunal concludes that Dr. Chuang’s sexual harassment conduct towards Ms Farias also constitutes sexual advance or solicitation by a person in a position to confer, grant or deny a benefit or advancement. The Tribunal repeats its conclusion that the infringement of that right began after Ms Farias, by her actions on April 14, 2001, decided to no longer accept rides home from Dr. Chuang. From that point onward, if Dr. Chung had any notions that he was in hot pursuit of a coy or shy woman, her actions were enough to rid him of that disillusion. Thus, from that point onward, he knew or ought reasonably to have known that his conduct was unwelcome.
221It is necessary in this case to determine whether Ms Farias’ right as protected under paragraph 7(3)(b) has been infringed. As stated in paragraph 198 above, there is a binary scheme implicit in section 7 of the Code. First, that section aims to eliminate sexual harassment in the workplace. Second, towards that end, there is a protection against reprisal or threat of reprisal when a complainant has exercised his or her right to vocalise his or her objection to the respondent’s solicitation or advance: one of the two protections in the second prong Without that ability to so assert, and the protection to indicate that the conduct is unwelcome, a complainant, who bears the onus of proof, may never be able to satisfy that onus. The significant nexus in paragraph 7(3)(b) to the other protections under section 7 is designed to encourage a complainant to indicate to another, without fear of retort, that her or his conduct is unwelcome.
222The Tribunal concludes that because Ms Farias rejected Dr. Chuang’s advances, he retaliated against her by yelling at her in front of patients; he became unduly harsh and subjective in his criticism of her work; and micro-managed her activities at work, obviously, which he did not, until after she vocalised her objection to his conduct. As a result in part, Ms Farias resigned, which is constructive dismissal. The Tribunal will determine next whether Dr. Chuang’s conduct infringed section 8 of the Code.
Was the Complainant’s right to claim and enforce her rights under section 8 of the Code without retaliation or threat of retaliation for doing so infringed?
223The Tribunal concludes that Dr. Chuang’s complaint to the Peel Regional Police was a pretext. Further, the Tribunal infers that Dr. Chuang’s complaint was an act of defiance to Ms Farias’ ultimate rejection of his advances: she resigned. By resigning, Ms Farias had cut all communicative links with him. Going to the police on March 31, 2001was to smoke her out because he was unable to reach her by calling her residence: her brother and sister had acted as conduits for her. The Tribunal concludes the act of engaging the police is as much a reprisal under section 8 as it is under paragraph 7(3)(b) of the Code.
224In addition, the Tribunal concludes that Dr. Chuang intended to punish or retaliate against Ms Farias by withholding her ROE and termination pay. By inference, his intention to retaliate is evinced by his refusal to appeal or satisfy the order made against him by the Employment Standards Officer. Likewise, his preparing the invoices for dental services he had performed on Ms Farias, and his sending them to collection was in retaliation for Ms Farias’ complaints to the police, the Commission, and the RCDSO. The telephonic harassment Ms Farias experienced by the collection agency is indirect reprisal by Dr. Chuang within the rubrics of section 9 of the Code.
225Finally, in this case, the Tribunal concludes that Ms Farias constructive dismissal constitutes reprisal within the rubric of section 8 of the Code because it was precipitated by the sexual harassment and sexual solicitation or advance of Dr. Chuang.
REMEDY
226Below the Tribunal reproduces the subsection, which explains the scope of Orders the Tribunal can make:
Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,
(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. (Emphasis added).
Remedy in Respect of the Compliance: the Complaint and Future Practice
227The Commission asks the Tribunal to make the following Orders against Dr. Chuang to achieve compliance with the Code in respect of his future practices, and the future practices of any current or future business he may own or operate in whole or in part:
Within three months of the Tribunal’s Decision, Dr. Chuang attend a training programme, at his own expense, designed to assist employers in identifying and addressing instances of discrimination on the basis of sex and sexual harassment, facilitated by an expert on anti-discrimination principles.
Within three months of the Tribunal’s Decision, Dr. Chuang establishes a comprehensive written anti-discrimination and anti-harassment policy for employees that conform to the requirements of the Code. That policy should address, among other things, a sexual harassment policy, and include an internal complaint process and specific notification that complaints arising under the said policy can be taken to the Commission within six months of the last alleged incident of discrimination or harassment, whether or not the internal complaint procedure is used.
Within three months of the Tribunal’s Decision, Dr. Chuang will post the said policy in a plain and obvious location at all places where Dr. Chuang conducts business.
228Finally, the Commission asks the Tribunal to remain seized of this matter for a period of 12 months from the date of any Order it may issue to deal with any issues that may arise with respect to implementation of the Order.
229These are rather ambitious and idealistic requests, which in the main are not pragmatic, and may not have any salutary effect. Further, the Tribunal is mindful of the Commission’s historical inability to enforce its Orders. The cases of Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd. Inq.), and Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (No. 8) (2005), C.H.R.R. Doc. 05-2841 (“McKinnon”), at para. 71 come to mind.
230To compound that challenge, the requests are precarious at best. The evidence before the Tribunal is that Dr. Chuang’s licence had been rescinded by the RCDSO, for which he sought an appeal. As of this writing, the (Acting) Registrar was informed that the appeal had not been perfected, but an extension was granted for the perfection of the appeal.
231Indeed, the Tribunal can impose the first two requests in an Order, but without any degree of certainty of enforcement, more than likely it will be perfunctory. The Code is a remedial statute and Orders must be commensurate with that incidental purpose. Thus, making an Order that the Respondent must carry out within three months particularly Item 3, more than likely, will be merely setting him up for a breach of the Orders. This is not only void of common sense, but is markedly contrary to natural justice and intentionally punitive.
232Also, there is the potential desperate impact on the Complainant. For most complainants, a successful complaint transforms the validity of the right to a tangible entitlement: a reclaiming of the right violated. Failure to enforce the judgement enfeebles the validity of the right and crushes the complainant’s dignity even worse than the actual infringement. Human rights law is loaded with legal and moral imperatives. An attendant legal and moral imperative is the enforcement of rights.
233Second, the practice of remaining seized with a matter, must not be for the enforcement of the Tribunal’s Order, unless it is to do a specific thing: e.g., to build a structure to facilitate accommodation or to implement a policy in a large entity. The case of McKinnon comes to mind. To implement an Order, and to enforce an Order are not the same. In Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (2004), C.H.R.R. Doc. 04-419 (Ont. C.A.) (“McKinnon”), the Court has given guidance that informs the Tribunal of the scope of its jurisdiction when its Orders are not implemented or subverted.
234The Orders requested by the Commission in this case, and the fact that the Respondent was a sole practitioner, are well within the Commission’s purview stipulated in paragraph 29(i) of the Code. Besides, subsection 19(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended has a schema where a party may register the Tribunal’s Order with a Superior Court, and the Order “shall be deemed to be an order of that court and is enforceable as” the Superior Court of Justice’s own judgements.
235The Tribunal is mindful that even though Dr. Chuang might not be practising dentistry, he may be an employee or an employer in some other field. Thus, the Tribunal is inclined to order the Respondent to attend training, at his own expense, with respect to anti-discrimination, and particularly sexual harassment, its impact in any workplace, in the delivery of service and the like. Within five business days upon completion of that training, he must present affidavit proof to the Commission that he has done so. The scope of this remedy will be dealt with under the section entitled “Order”.
Restitutive Remedy including Monetary Compensation
Loss Arising out of the Infringement of Subsections 5(1, 7(2) and 7(3)
236Implicitly, the Commission asks the Tribunal to consider the humiliation, hurt feelings, loss of self-respect, the vulnerability of the Complainant, and the seriousness, frequency and duration of the infringement of the Code. It asks the Tribunal to consider specific cases, and the amount of monetary damages awarded in those cases. It is not necessary to list the cases here, but from the keen familiarity with those cases, none is similar to the facts of this case.
237The Boards of Inquiry and this Tribunal have stressed the significance of those factors and others in assessing the monetary compensation of a case. Ascribing compensatory value to those factors must be informed by evidence.
238In explaining the impact of Dr. Chuang’s conduct on herself, Ms Farias asserts that she has suffered Post-traumatic Stress Disorder. Based on past cases and evidence on that diagnosis before the Tribunal, that is indeed serious. Neither the Commission nor Ms Farias proffered any medical evidence on this point to the Tribunal. Nor is there any medical evidence before the Tribunal on the casual nexus between the alleged PTSD diagnosis and this Complaint. As the Tribunal pointed out in paragraph 140, there is no medical evidence before it about the type or extent of treatment Ms Farias might have received or continues to receive from Dr. Faux.
239The Tribunal accepts the evidence that the experience was emotionally distressing for Ms Farias; that she suffered insomnia; it affected her romantic relationship with Mr. LaPlante; that she has trouble trusting male employers. It is apposite to state, for the purpose of remedial consideration, that the duration of Ms Farias experience, based on the Tribunal’s finding, begins from April 2001, the time when she indicated to Dr. Chuang that his advances were unwelcome.
240In determining the appropriate damages for subsections 7(2) and 7(3) infringements, the Tribunal has taken into consideration the binary scheme implicit in those subsections, and the binary impact of the infringements on the complainant. (See paragraph 221 above).
241It is not always that a violation of subsection 7(2), sexual harassment, will leads to a violation of subsection 7(3). Likewise, it is not always that a violation of paragraph 7(3)(a)—sexual advance or solicitation—will lead to an infringement of paragraph 7(3)(b)—reprisal or threat of reprisal for rejection of sexual advance or solicitation.
242The binary impact is the erosion of dignity because of the revulsion from the advance or solicitation, and the impact of the penalty or threat of penalty to express objection to the conduct and to assert the right to be free from such conduct. Those impacts together will likely have a deleterious effect on the complainant’s dignity and self-worth. Therefore, it is not double compensation to consider each impact separately in assessing damages for the infringement of subsections 7(2) and 7(3), especially where the person in such high authority over the complainant, uses her or his power to retaliate or threaten retaliation for the rejection of advance or solicitation.
243Finally, the Tribunal’s assessment of damages is informed by the words of the Board of Inquiry in Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd. Inq.) at paragraphs 86 and 87, adopted from the Supreme Court of Canada in Robichaud v. Her Majesty the Queen, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84. Those paragraphs are reproduced below:
86In Robichaud v. Her Majesty the Queen 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 at page 90, Laforest, J. states:
Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.
87At page 92, Laforest J. adds:
Any doubt that might exist on the point is completely removed by the nature of the remedies provided to effect the principles and policies set forth in the Act. This is all the more significant because the Act, we saw, is not aimed at determining fault or punishing conduct. It is remedial. Its aim is to identify and eliminate discrimination. If this is to be done, then the remedies must be effective, consistent with the "almost constitutional" nature of the rights protected. (Emphasis added).
244The Commission asks the Tribunal to consider amounts it has awarded in several cases. Again, none of the cases cited bears any similarity to this case.
245Based on the evidence before the Tribunal, following the Board’s decision in Fuller in heeding the Court’s instructions in Robichaud, considering the binary scheme of section 7, the degree of seriousness and the duration of the infringement, an award of $7,000 is appropriate for the infringement of the rights under subsections 5(1), 7(2) and 7(3) of the Code.
Loss Arising out of the Infringement of Section 8
246It is apt to restate that one’s ROE and severance pay are critical implements in the severance of the employee/employer relationship. Cutting that relationship, especially in sexual harassment incidents, may be the first step towards the assertion to reclaim one’s dignity. Ms Farias initiated that severance because she could not tolerate the Dr. Chuang’s touching, and the environment was not conducive to work. Although Dr. Chuang did not fire her, Ms Farias was forced to resign because of his punitive conduct after she had informed him that his conduct was unwelcome. The withholding of the ROE is tantamount to a poignant virtual captivity; it forces contact even though the Complainant did not wish to do so. Also, the withholding of the ROE could have thwarted the Complainant’s access to well-needed benefits.
247In addition, to continue the link of control of Ms Farias or to keep in contact with her or both, Dr. Chuang wittingly engaged the help of an arm of the law: Peel Regional Police. The police had determined, after its investigation, that his complaint was “frivolous”. (See paragraph 105 above). The Tribunal finds that tactic alarming. Finally, he engaged the help of a collection agency to torment Ms Farias, under the guise of collecting unpaid bills for dental services he had performed for Ms Farias. The relentless nature of collection agencies is well known, even to one who has never had that experience.
248An effective remedy is required in this case. The remedy is to inform likeminded people that retaliation not only foils a complainant’s ability to assert his or her rights; it also undermines the State’s efforts towards “the creation of a climate of understanding and mutual respect for the dignity and worth of each person”, and ultimately the elimination of discrimination. Accordingly, $20,000 is appropriate.
Mental Anguish
249In Fuller, at paragraphs 94 and 95 the Board of Inquiry states:
It is clear from the plain reading of subsection 41(1)(b) that the Board must find three elements present before it can exercise its discretion to order monetary compensation for mental anguish. First, the Board must find that the conduct complained of was contemporaneous with the infringement of the right. Second, that the conduct the respondent engaged in at the time of the infringement was either wilful or reckless. Third, and flowing from the second, the Board must find that the complainant sustained mental anguish.
To meet the constituent element of wilfulness [sic] under subsection 41(1)(b), the Board must determine whether the conduct complained of was intentional and the infringement of the complainant’s right was the reason for the conduct: (York Condominium Corp. No. 216 v. Dudnik (1991) 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406(Div. Ct., Ont. Ct. Gen. Div.) at p. 413). To meet the constituent element of reckless under subsection 41(1)(b), the Board must determine whether the Respondents’ conduct evinces such disregard or indifference to the consequences or impact on the complainant: (Cameron v. Nel-Gor Nursing Home (1984), 5 C.H.R.R. D2170).
250The Commission asks the Tribunal to consider, as a guide, the awards in several cases, which the Tribunal need not recite here because none is the same as this case. Specifically, the respondent in none of those cases had engaged the arm of the law or the State to perpetuate the harassment or reprisal of a complainant. Yet, Ms Farias is not of the same contemporary or work experience as Ms Arias or Curling.
251The Code is a remedial statute. Only this section of the Code allows a penal remedy based on the conduct of the respondent at the time of the infringement. In addition to eliminating discrimination, this remedy acts as a deterrent to socially undesirable conduct.
252Invariably, a finding of sexual harassment or sexual advance or solicitation will lead to a finding of wilfulness or recklessness because of the intention of the conduct, knowing of, reasonably ought to have known that, being reckless of, or wilfully blind to the lack of consent or that the conduct is unwelcome. The Tribunal is satisfied that the elements of mental anguish have been met. On all the evidence, including the implements the Respondent used in his conduct informs the Tribunal that the amount of $5,000 is appropriate.
Pecuniary Tangible Compensation (Wage Loss)
253The Tribunal accepts Ms Farias’ evidence that she was terminated constructively on May 2001 and found new employment in September 2001: a period of 14 weeks. There is no evidence before the Tribunal that Ms Farias had failed to mitigate her loss. In the main, Ms Farias’ employment history shows a steady work pattern. The Tribunal is persuaded that Ms Farias ought to be compensated for the full period of 14 weeks at an average $311 weekly: $4,354.
Pre- and Post-Judgement Interest
254Pre and Post-Judgement interests are discretionary. The Tribunal grants pre-and post-judgement interest to run from August 2001, according to section 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
255The Tribunal sees no need to remain seized of this matter. This case fall within the Commission’s duties as set out in paragraph 29(i) of the Code.
ORDER
256The Tribunal makes the following orders:
Compliance Concerning Future Conduct
a) Within six months from the date of this judgement, Dr. Chuang shall, at his own expense, attend training with respect to anti-discrimination, and particularly sexual harassment, its impact in any workplace, in the delivery of service and the like. Within five business days after he has completed the training, he must present affidavit proof to the Commission that he has done so.
b) Within 72 hours of the date of this judgement, Dr. Chuang shall rescind, in writing, the arrangement he had made with CB of Peel/Default and Investigation Division or any other collection agency to collect moneys from Ms Lucy Farias for dental services performed on her between January 27, 2001 and May 26, 2001. Within five business days after he has completed the training, he must present affidavit proof to the Commission that he has done so.
Restitution
c) Within 90 days from the date of this judgement, Dr. Chuang shall pay to Ms Farias:
(i) Monetary compensation for loss arising out of the infringement of subsections 5(1), 7(2) and 7(3) $7,000.
(ii) Monetary compensation for loss arising out of the infringement of section 8, $20,000.
(iii) Monetary compensation for Mental Anguish $5,000.
(iv) Recompense for pecuniary loss for Ms Farias’ inability to earn a wages for 14 weeks at $311 weekly, $4,354.00.
(v) Pre-and post-judgement to run from August 2001, within the purview of the Court’s of Justice Act.
Dated at Toronto, this 11th day of July, 2005.
“Original signed by Patricia E. DeGuire”
Patricia E. DeGuire
Vice-Chair
Footnotes
- David Chuang’s licence was suspended and had not been reinstated at the time of writing this decision.
- The record indicates that by letter dated May 13, 2004, para. 2 instructed parties and counsel to bring their day timer with them to the mediation.
- Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.