HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Nicole Metcalfe and Martin Hoogerdijk
Complainants
-and-
Papa Joe’s Pizza & Chicken Inc.
and Frank Toufighjou
Respondents
DECISION
Adjudicator: The Honourable Alvin B. Rosenberg, Q.C.
Date: November 7, 2005
Citation: 2005 HRTO 46
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 ) Raj Dhir, Counsel
Nicole Metcalfe, Martin Hoogerdijk, ) On their own behalf
Complainants )
Papa Joe’s Pizza & Chicken Inc, Corporate ) Peter F.Thompson, Counsel
Respondent, )
Frank Toufighjou, Personal Respondent )
INTRODUCTION
Background
1Both of the Complainants were at various times employees of the Respondents, Papa Joe’s Pizza & Chicken Inc. (Papa Joe’s), which was owned and managed by the Respondent, Frank Toufighjou,( Toufighjou).
2The Commission and Complainants alleges that the Respondents, Toufighjou and Papa Joe’s violated the rights of the Complainant, Metcalfe, to be free from sex discrimination: section 5(1) of the Human Rights Code (the Code), sexual harassment: section 7(2) of the Code, sexual solicitation: 7(3)(a) of the Code and reprisal for asserting her rights under the Code: section 8 of the Code.
3The Commission and Complainants further allege that the Respondents, Toufighjou and Papa Joe’s, violated the rights of Martin Hoogerdijk to be free from discrimination because of family status: section 5(1) of the Code and association: section 12 of the Code, and reprisal for asserting his rights under the Code: section 8 of the Code.
4The outcome in this case depends to a great extent on credibility. Metcalfe, on her own behalf, as well as the similar fact witnesses Tara Boxall and Nicole Laroque, gave detailed evidence of the alleged harassment and discrimination.
5Toufighjou denied that the alleged discrimination and/or harassment occurred. I accept the evidence of Metcalfe as corroborated by the similar fact evidence of Boxall and Laroque.
6With regard to the testimony of Hoogerdijk, none of his evidence was contradicted except on the question of whether or not he left the employment voluntarily or was fired. Toufighjou testified that he left voluntarily. I find as a question of fact that he was fired, but even if he were not, the actions of Toufighjou’s wife without any interference or comment by Toufighjou, amounted to constructive dismissal.
7Metcalfe’s evidence which I accept is as follows:
Within two or three weeks after she began her employment, Toufighjou began making comments to her such as “you are a good looking person”, “nice legs”, “nice body”. These comments occurred every day or every other day. Metcalfe initially tried to ignore the comments figuring that her job would be in jeopardy if she mentioned anything about it. She continued to work at Papa Joe’s and Toufighjou ‘s comments became more rude, more abrupt, more often and more specific. Including “nice boobs” and that she should go into the back so he could suck on them. Other solicitations followed, “can I see your body?”, “can I touch your body?”, “can I kiss you?”. “How old was the oldest man that you have slept with”, “I’ll give you $100 to sleep with my son”. In July, 2001, Toufighjou asked her to take off all her clothes so that he could tell if her body was any good so that she could be a stripper. When she was driving Toufighjou home he started rubbing her arms telling her that her skin was soft asking for a goodbye kiss. When she arrived the next day, Toufighjou said, “where is my kiss?” On one occasion when she was cleaning the fire hoods and her shirt was untucked from her pants, she noticed that Toufighjou was looking up her shirt. She immediately got off the chair and said “why are you doing this?”.
REPRISALS WITH RESPECT TO SECTION 8 OF THE CODE
8Although Toufighjou testified that there were other reasons for her dismissal, I find that Metcalfe’s dismissal was due to the fact that she asserted her rights under the Code by confronting Toufighjou and filing a police report.
9In Jones v. Amway, [2002] O.J. No. 1504 at para. 11 (Div. Ct), the Divisional Court held that to make out the ground of reprisal the appellant needed to establish that the personal respondent intended to reprise. The intention to reprise is established by Toufighjou’s own direct evidence but is also inferred from the timing of Metcalfe’s dismissal which occurred immediately after Officer Caddell met with Toufighjou to discuss Metcalfe’s allegations.
10Having considered all of the evidence and particularly the evidence of Metcalfe as to what she endured during her employment and how she felt after being dismissed, I award the following:
- As general damages $12,000.00, damages for mental anguish $8,000.00. With regard to special damages Metcalfe was earning $6.50 per hour before she was fired. She also testified she earned between $100.00 and $130.00 in tips per week, and she testified in cross-examination that in total she would earn approximately $325.00 per week. Taking into account the $200.00 per week that she earned for approximately seventeen weeks as mitigation I find that her special damages are in the amount of $5,000.00. Accordingly she is entitled to an award against the Respondent’s jointly and severally in the total amount of $25,000.00.
HOOGERDIJK
11The Respondents dismissed Hoogerdijks’ employment after he had accompanied Metalfe, when she confronted Toufighjou about sexual harassment, and later filed a police report. I find that the Respondents willfully violated Hoogerdijks’ rights under the Code by this dismissal. The impact of the Respondents conduct on Hoogerdijk was in part as follows:
Hoogerdijk was hurt because he had always worked on the basis of trust. Hoogerdijk went from being one of the most entrusted employees to being advised that he could not be trusted and calling him an asshole. Toufighjou tried to ruin Hoogerdijk’s reputation with his new employer by telling that new employer that Hoogerdijk could not be trusted. Hoogerdijk was upset by what occurred between Toufighjou and Metcalfe. He testified that he felt hurt and that he had a betrayed feeling. Hoogerdijk felt badly and was sorry that he recommended to Metcalfe that she apply for a job at Papa Jo’s.
Accordingly, I award Hoogerdijk $8,000.00 in general damages and damages for mental anguish in the amount of $4,000.00. As special damages it appears that Hoogerdijk lost six weeks of work at $300.00 per week for a total of $1,800.00 and accordingly is entitled to a joint and severally award against the Respondents in the amount of $13,800.00.
Both Complainants are entitled to pre-judgement and post-judgement interest in accordance with the Courts of Justice Act. Pre-judgement interest should run at prescribed rate from the dates of the complaints, post-judgement interest should run on any principal and pre-judgment interest from 30 days after the date of this Order at the rate set for the quarter in which this Order is made.
PUBLIC INTEREST REMEDY
12The Commission and the Complainants ask for an order that:
- Toufighjou attend at his own cost a mandatory human rights training program that includes a strong anti-harassment focus.
I decline to make such an order if Toufighjou has not learned from suffering through these preceedings and this award then he is not likely to learn anything further from a training program.
- Toufighjou be required to implement at any present or future place of business, owned or operated in whole, or in part by him, including “Identity Bar”, a comprehensive workplace harassment and discrimination policy that explicitly addresses sexual harassment, includes a definition of harassing behaviours, and an internal complaints process and specific notification that complaints arising under the policy can be taken to the Commission. This policy will be prepared by a human rights consultant at Toufighjou’s own cost.
I find that under all of the circumstances such as Order is reasonably required and I do Order this public interest remedy.
- Toufighjou provide all future employees at any present or future places of business a copy of the Commission’s Policy entitled Gender Harassment and Inappropriate Gender-Related Comments and Conduct.
I so Order.
- Toufighjou provide the Commission with the names and addresses of any female employees who leave positions of employment with Toufighjou for a period of two years commencing from the date of the Tribunal’s decision in this matter.
I so Order.
Dated at Toronto, this 7th day of November, 2005.
“Signed By”
The Honourable Alvin B. Rosenberg, Q.C.
Member