Sanford v. Koop (No. 2)

HR-0956-05

2005-12-14

2005 HRTO 53

Ontario Human Rights Tribunal

CHRR Doc. 05-727

Sarah Sanford Complainant

and

Ontario Human Rights Commission Commission

v.

Dr. Gerry Koop Respondent

Date of Decision: December 14, 2005

Before: Human Rights Tribunal of Ontario, Michael Gottheil, Chair

File No.: HR-0956-05

Appearances by: Richard Miller, Counsel for the Commission John Westdal, Counsel for the Complainant

SEXUAL HARASSMENT — poisoned work environment — sexual advances by supervisor — verbal abuse and denigration — employer's obligation to provide workplace free from harassment — SETTLEMENT — effect of settlement of complaint against one respondent

DAMAGES — damages assessed for sexual harassment and wilful or reckless discrimination — injury to dignity and self-respect — compensation for lost wages — general damages — pre- and post-judgment interest — interest on total damages — REMEDIES — harassment and sensitivity training — confirmation that respondent did comply with order

Summary: The Human Rights Tribunal of Ontario ruled that Dr. Gerry Coop sexually harassed and discriminated against Sarah Sanford because of her sex.

Dr. Koop and Ms. Sanford were both employees of a technology firm serving the health care sector. Dr. Koop was a senior managerial employee while Ms. Sanford was a Senior Marketing Specialist between 1998 and 2003. Her complaint was originally filed against the firm as well as Dr. Koop. However, the Commission and Ms. Sanford entered a settlement agreement with the firm, and only the complaint against Dr. Koop was referred to the Tribunal for hearing.

The Tribunal accepted evidence that, starting in 2001, Dr. Koop subjected Ms. Sanford to a pattern of harassment and discrimination that included touching, leering, displays of unclothed women in suggestive poses on his computer screen, obscene gestures and remarks, personal comments on Ms. Sandford's sex life and appearance, and comments on his own sexual interests and desires.

Throughout the period of Dr. Koop's sexual harassment, Ms. Sanford tried to get him to stop. She objected herself to his comments and conduct, told co-workers who also complained to Dr. Koop, told her supervisors, and finally, because she was frightened, contacted the police. The conduct of Dr. Koop humiliated her and made her frightened. She began experiencing panic attacks, sleeplessness, loss of appetite and nausea. She saw her family physician, a psychologist and a psychiatrist. In 2003, she resigned.

The Tribunal concluded that Ms. Sanford was sexually harassed and that her resignation was involuntary.

The Tribunal awarded her general damages of $25,000. It also awarded her $10,000 for mental anguish, $18,570 as compensation for wage loss and $1,041 as compensation for expenses incurred.

See also (No. 1) (2005), CHRR Doc. 05-455, 2005 HRTO 28.

CASES CITED

Arias v. Desai (No. 2) (2003), 45 C.H.R.R. D/308, 2003 HRTO 1: 35

Baylis-Flannery v. DeWilde (No. 2) (2003), 48 C.H.R.R. D/197, 2003 HRTO 28: 34

Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd.Inq.): 35

deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd.Inq.): 35

Gibbons v. Sports Medic Inc. (2003), 48 C.H.R.R. D/98, 2003 HRTO 26: 34

Imperial Oil Ltd. v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 34

Imperial Oil Ltd. v. Entrop (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)): 34

Imperial Oil Ltd. v. Entrop (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.): 34

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 30

Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.): 35, 38

Morrison v. Motsewetsho (No. 2) (2003), 48 C.H.R.R. D/51, 2003 HRTO 21: 43

O.P.E.I.U., Local 276 v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd.Inq.): 34

Sanford v. Koop (No. 1) (2005), CHRR Doc. 05-455, 2005 HRTO 28: 2

Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 (Ont. Sup.Ct.): 34

York Advertising Ltd. v. Ontario (Human Rights Comm.) (2005), 2005 CanLII 15469 (ON SCDC), 55 C.H.R.R. D/308 (Ont. Div.Ct.): 12

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 127: 42

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

s. 5(1): 1, 28

s. 7(2): 1, 28

s. 9: 1, 28

s. 41(1)(a): 44

s. 41(1)(b): 37

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), alleging discrimination and harassment in employment on the basis of sex, in violation of ss. 5(1), 7(2) and 9. The complaint was filed October 14, 2003, and was referred to the Human Rights Tribunal of Ontario (the "Tribunal") on April 20, 2005.

2In an interim decision dated August 10, 2005, the Tribunal decided, following a request by the Commission and the complainant, that it was appropriate in the circumstances to issue a Notice of Written Hearing. The Tribunal further held that in the absence of the respondent satisfying the Tribunal that there was "good reason" not to proceed by way of written hearing, the complaint would be disposed of by written hearing (see: Sanford v. Koop, 2005 HRTO 28 [CHRR Doc. 05-455]).

3At § 32 of the August 10, 2005, decision, the Tribunal made the following Order:

a. The Tribunal will, subject to paragraphs b, c and d below, conduct a written hearing to determine the merits of the Complaint.

b. If the respondent objects to proceeding by way of written hearing, he shall no later than August 17, 2005, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. The respondent should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding his objections, the Tribunal determines that it is appropriate to hold a written hearing.

c. If the respondent files submissions as set out above, the Commission and the complainant shall have 5 days to file and serve their replies.

d. Should the respondent object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the case will proceed by written or oral hearing.

e. Should the respondent fail to provide submissions by August 17, 2005 as set out in paragraph b above, the Tribunal will proceed without the respondent's participation and the respondent will not be entitled to any further notice of these proceedings.

f. Should the respondent fail to provide submissions as set out in paragraph b above, the Commission and the complainant shall, no later than September 17, 2005, serve and file all evidence, documents, submissions and argument upon which they seek the Tribunal to consider in making a decision on the merits of the complaint and with respect to appropriate remedy.

g. This Order shall serve as a Notice of Written Hearing.

4The respondent failed to provide submissions as directed by the Tribunal. The August 10, 2005, interim decision was sent to the respondent by courier. The Tribunal Registrar has advised that the decision was not returned as undeliverable.

5The Tribunal finds that the respondent was duly served with the Tribunal's interim decision, but failed to file submissions as directed. As a result, in accordance with the interim decision dated August 10, 2005, and the Tribunal's Rules, the Tribunal will dispose of this matter by way of written hearing.

6The Tribunal further finds that, in accordance with the August 10, 2005, interim decision, and the directions and cautions provided to the respondent therein, the Tribunal shall make its final determination in this matter based only on the materials filed by the Commission.

7The Commission did file written materials in support of its case before the Tribunal. In addition to its written submissions, which included a detailed remedial request, the Commission filed a sworn affidavit of the complainant, along with various documents attached to it as exhibits.

8The complainant did not file separate materials, but instead indicated that she was content to rely upon the materials filed by the Commission.

9Upon reading the affidavit of the complainant and reviewing the documents attached as exhibits, the Tribunal finds there is no reason to doubt the credibility of the complainant, and the reliability of the documents presented. The complainant's story is consistent, both internally and in relation to the documents presented, and has been throughout the relevant period. The Tribunal accepts as uncontradicted evidence all of the statements made by the complainant in her affidavit, and accepts into evidence all of the documents attached to her affidavit.

10Prior to considering the facts and making a determination in this matter, it is important to address an additional peculiar aspect of this complaint.

11The subject matter of the complaint involves allegations of gender discrimination and sexual harassment in employment. The complaint was originally filed against both the complainant's former employer (the "employer"), a technology firm serving the health care industry, and Dr. Gerry Koop, who was at all material times a senior managerial employee of the employer. Prior to the complaint being referred to the Tribunal, the Commission, the complainant and the employer entered into a mutually agreed upon settlement, so that the subject matter of the complaint referred to the Tribunal was restricted to allegations of wrongdoing by Dr. Koop.

12The Commission referred the Tribunal to the recent decision in York Advertising Ltd. v. Ontario (Human Rights Commission) (2005), CHRR Doc. 05-472 [reported 2005 CanLII 15469 (ON SCDC), 55 C.H.R.R. D/308] (Div.Ct.). It argued that in light of the settlement reached between the employer, the Commission and the complainant, the Tribunal should refrain from making any findings of wrongdoing and violations of the Code as against the employer.

13The Commission referred the Tribunal to § 21 of the decision where the Court wrote:

In the circumstances of this case, the applicants were entitled to assume that, once the terms of the settlement reached had been fully finalized, they could safely disengage themselves entirely from the complaints process without fear of being in jeopardy of being the subject of adverse findings and conclusions by the Tribunal. It would be incomprehensible, and contrary to law, that a statutory procedure for the resolution of human rights complaints in Ontario could lead to findings of wrongdoing against a party who had been released from the complaints process through a settlement, and who had no formal notice of the hearing, was not a party to it, and did not participate.

14Apart from natural justice concerns, the Court emphasized the importance of maintaining the integrity of the settlement process envisaged and encouraged by the Code. In this regard, the Court's comments at § 20 of the reasons are particularly apt:

Recognizing that the Code explicitly encourages the making of settlements, it is important that the reasonable expectations of parties engaged in the complaints process who enter into settlements in good faith be protected by the Tribunal. Without such protection, the work of the Commission in promoting settlements would be severely compromised.

15The Tribunal notes, in addition, that the Tribunal's Rules also provide a mechanism and encourage the settlement of complaints referred by the Commission.

16As a result, the Tribunal will not and does not herein make any findings of violations of the Code in relation to the employer.

FACTS

17The complainant commenced employment with the employer in the marketing and sales department on August 28, 1998, and resigned on September 5, 2003. At the time of her departure, she had attained the position of Senior Marketing Specialist.

18The respondent was hired by the employer in 1999 as the head of the Research and Development Department. He was subsequently demoted in 2000, but at all material times was a managerial employee and senior to the complainant. The respondent also had a long-standing personal friendship with one of the senior executive officers of the employer.

19The evidence establishes that, over a period of approximately two years, commencing in 2001, the complainant was subjected to a pattern of sexual harrassment and discrimination in the workplace by the respondent Dr. Gerry Koop. At the time the harassment and discrimination commenced, the complainant was 29 years old and the respondent was approximately 50 years old.

20The conduct engaged in by Dr. Koop was not solicited, encouraged or condoned by the complainant. Indeed, from the very outset of the respondent's conduct, the complainant attempted, at each and every opportunity to have him stop. Initially, she made her objections and discomfort known to Dr. Koop directly, then sought assistance from co-workers and ultimately, as the behaviour grew worse, she made formal complaints to the human resources department of the employer and filed a complaint with the police.

21The Tribunal does not consider it necessary to set out a detailed narrative of all of the improper behaviour engaged in by the respondent. However, for the record, it is important to summarize the conduct which forms the basis of the complaint:

• Commencing in 2001, the respondent began asking the complainant and other female employees for hugs.
• In and around the same period, the respondent began leering at the complainant.
• The respondent told female employees on a number of occasions that he regularly visited a strip bar adjacent to the employer's office.
• The respondent regularly had the "Sunshine Girl" page of the Ottawa Sun newspaper opened and displayed on his desk.
• The respondent maintained for some time, a screensaver of women in bikinis in suggestive poses on his computer at work. Following complaints by employees, the respondent's immediate supervisor, who was a woman, asked that the screensaver be removed. He refused. It was not until the senior executive officer, a male, and personal friend of the respondent spoke to him, that the respondent removed the offensive material from the computer.
• In a common work area, the respondent told the complainant and another female employee that he had hired a prostitute the night before and attempted to draw the complainant into a conversation about this.

22On May 9, 2003, the respondent's office was moved directly adjacent to the complainant's. It appeared to the complainant that, from this point, the respondent began to target her more aggressively and the behaviour escalated.

23Examples of the conduct engaged in by the respondent in and after May 2003:

• In mid-May 2003, the complainant was talking with fellow employees at the office reception area. The respondent walked up behind the complainant and slapped her on the buttocks with a "post-it" note in his hand.
• In the week of June 5, 2003, the respondent asked the complainant for a digital camera, and then proceeded to tell the complainant that he needed it to take pictures at a live-sex show that he was going to attend while at a work-related trade show in Las Vegas.
• On or about June 9, 2003, the complainant was in the office kitchen preparing her lunch. The respondent was walking down the hall, stopped and approached the complainant. He grabbed her belt buckle and pulled it open. The complainant shocked and frightened said, "What the hell were you thinking?" He said, "I wanted to see if the belt worked". The complainant told the respondent that if he ever touched her again, she would not be responsible for her reaction. In response, the respondent laughed and said, "Oh Sarah, everyone is responsible for their own actions".
• On or about June 16, 2003, the complainant was again in the office kitchen area preparing her lunch and talking to a co-worker. The respondent came in and pressed his entire body against the side of the complainant's body. He was so close she could feel his breath on her forehead. Then he stuck his finger in the chicken she was preparing for lunch. She turned around and pushed him away with both hands. She told him to "get the hell away from me", that he was making her claustrophobic.
• On or about July 16 or 17, 2003, the complainant was in the reception area waiting to speak with a co-worker. The respondent saw the complainant and immediately came straight towards her. He tried to press his entire body against the side of hers, but she managed to step around the corner of a desk. The complainant asked the respondent if he had received a copy of the employer's "Code of Ethics", which had been delivered to all employees at their homes. He responded, "Why haven't you received it, haven't you been home? So what your [sic] telling me is that you have been out having sex with multiple partners?"
• On or about July 16, 2003, the complainant met with the employer's Director of Human Resources to formally complain about the actions and behaviour of the respondent. After the meeting, as the complainant was returning to her office, she passed by the front reception desk where the respondent was having a meeting. As she passed, he interrupted his meeting, stood up in front of other work colleagues and loudly stated, "Hold on, Sarah wants me".
• On August 12, 2003, the complainant was speaking with Ms. Shannon Juneau, a co-worker who had witnessed much of the harassing behaviour the complainant had been subjected to, and who had spoken to the respondent in an effort to have the conduct cease. Ms. Juneau explained that, while the complainant was away on vacation, the respondent had approached her (Ms. Juneau) holding a zucchini and in a suggestive manner asked if it was hers. When Ms. Juneau dismissed his comment saying she did not know whose it was, he responded, "Oh, I thought Sarah could use it anyhow".

24As noted above, throughout the period during which the respondent engaged in this course of harassing and discriminatory behaviour, the complainant attempted to have him stop. Her statements to him, that his comments and actions were unwelcome and disturbing, were clear and unequivocal. She spoke with co-workers who also indicated to the respondent that his behaviour was inappropriate and offensive. When none of these attempts to have the behaviour stop proved effective, and the respondent's harassment appeared to intensify, the complainant made formal complaints to the employer. In addition, fearing for her safety, she filed a police complaint.

25In addition, around the end of 2002 or the beginning of 2003, the employer introduced a series of workplace policies which all employees received and were required to sign. These included: (1) a revised Employee Handbook, with specific provisions on harassment and sexual harassment; (2) a Code of Business Conduct and Ethics, which detailed the employer's commitment to legal and ethical standards of conduct for directors, officers, and employees; (3) an email and Internet policy titled, the "Security Strategy Document", which strictly prohibited the use of the employer's email and Internet system for displaying, viewing, downloading or transmitting offensive content.

26The evidence establishes that the respondent's conduct made the complainant feel ashamed, vulnerable, frightened and disgusted. Both outside and at work, she began experiencing stress-related symptoms such as anxiety, nervousness, panic attacks, sleeplessness, loss of appetite and nausea. Directly related to the actions of the respondent, she had to seek treatment from her family physician, a psychologist and a psychiatrist. The Commission submitted medical reports from the complainant's treating physicians, including her psychiatrist Dr. Powell who she saw over sixty times in a fifteen-month period.

27In addition, from a career and economic point of view, the effects of the respondent's behaviour were devastating. The complainant was forced to resign from a job which she enjoyed and in which, by all accounts, she was quite successful. As a result, she experienced serious financial difficulties and amongst other things, was forced to relocate to a less expensive apartment.

DECISION

28Based on the evidence and a review of the jurisprudence in this area, the Tribunal has no difficulty in finding that the respondent, Dr. Gerry Koop, has violated Ms. Sanford's rights under the Human Rights Code. His comments, actions and behaviour as described above, which he clearly knew or ought to have known were unwelcome and wrong, constitute gender discrimination and sexual harassment within the meaning of ss. 5(1) and 7(2) of the Code. The Tribunal further finds that the respondent breached s. 9 of the Code.

29The Tribunal finds that the improper behaviour of the respondent created a situation where the workplace became unbearable for the complainant, and as a result her resignation was not voluntary. The Tribunal finds that the actions and behaviour of the respondent, which were in violation of the Code, caused the complainant's loss of employment and the various psychological and physical symptoms suffered by the complainant as set out in the evidence.

30This case demonstrates, as with most cases of gender discrimination and sexual harassment, that the conduct of the perpetrator has nothing to do with misguided attempts at social interaction, but has everything to do with an abuse of power. In Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205, Supreme Court of Canada stated, at § 44451.

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

31This case also demonstrates that it is not only dignity and self-respect that is "attacked" when an employee is subjected to sexual harassment. The employee who is required to endure repeated unwelcome comments, propositions and touching may suffer very real psychological and physical symptoms which can significantly impact on their ability to participate equally in the workplace, achieve their potential and succeed in desired career advancement. The barriers and economic consequences that workplace sexual harassment create can have both immediate and long-term impact. As the complainant said in her affidavit:

The humiliation of having to explain why I left my job and the experience is one I will live with forever and have had to re-live over and over each time I have told this story. For the rest of my life, when I apply for a new job and they ask me why I left [my employer] — I will re-live the entire experience over again. One moment I was building up personal and career momentum, the next, I was left terrified to enter my office building, terrified to be at home, left with no income and on unemployment insurance.

32Co-workers, especially those holding supervisory and senior positions, must understand the profound negative impact harassing and discriminatory behaviour can have on others in the workplace. The Code should be applied in a manner which ensures that this message is clearly understood, with the result that all individuals have the opportunity to participate, contribute and achieve their potential in their working lives.

REMEDY

33In its submissions, the Commission set out a number of remedies it argues are appropriate in this case. The remedial request includes both general and special damages to compensate the complainant as well as "public interest" remedies. In all of the circumstances, based on the evidence, submissions of the Commission, the jurisprudence related to the awarding of remedies, and in light of the failure of the respondent to participate, the Tribunal sees no reason not to award the remedies sought by the Commission.

General Damages

34The Commission asks that the Tribunal award $25,000 in respect of general damages. In support of its position, the Commission submits Tribunal jurisprudence has established the principle that there is an intrinsic value to the rights enumerated in the Code, and the infringement of those rights warrants the assessment of general damages in addition to an award for mental anguish (Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 at § 50 (Ont. Bd.Inq.); aff'd (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Ont. Ct. (Gen.Div.)); rev'd in part on other grounds (2000), 2000 CanLII 16800 (ON CA), 37 C.H.R.R. D/481 (Ont. C.A.)). Further, it argues, there is no ceiling on general damage awards and in making such awards, the Tribunal should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate ( Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28414 (ON SCDC), 39 C.H.R.R. D/111 at § 43 and 44 (Sup.Ct.), Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 at § 126–27 (Ont. Bd.Inq.), Gibbons v. Sports Medic Inc. (2003), 2003 HRTO 26, 48 C.H.R.R. D/98 at § 49 and 50, Baylis-Flannery v. DeWilde (No. 2) (2003), 2003 HRTO 28, 48 C.H.R.R. D/197 at § 173 (H.R.T.O.)).

35The Commission provided a number of cases which set out the criteria to be used in assessing the appropriate quantum of general damages. These factors include:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant's loss of self-respect
• A complainant's loss of dignity
• A complainant's loss of self-esteem
• A complainant's loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

See: Baylis-Flannery v. DeWilde (No. 2), supra (total general damages of $35,000); Arias v. Desai (No. 2) (2003), 2003 HRTO 1, 45 C.H.R.R. D/308 (H.R.T.O.) (total general damages of $25,000); Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 (Ont. Bd.Inq.) (total general damages of $21,000); Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37 (Ont. Bd.Inq.) (total award of $20,000 for general damages and mental anguish); deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd.Inq.) (total award of $25,000 for general damages and mental anguish).

36The Tribunal accepts the submissions of the Commission. Considering the evidence in this matter, and the similarity of the facts in this case with the facts in the cases cited by the Commission, the Tribunal awards $25,000 in general damages.

Damages for Mental Anguish for the Reckless and Wilful Infringement of the Complainant's Rights

37Pursuant to s. 41(1)(b) of the Code, the Tribunal may award damages of up to $10,000 for mental anguish, injury to dignity, feelings and pride, where such infringement has been engaged in wilfully or recklessly.

38The Commission identified the factors used to assess mental anguish damages pursuant to s. 41(1)(b):

• The immediate impact of the discrimination and/or harassment on the complainant's emotional and/or physical health — e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities
• The ongoing impact of the discrimination and/or harassment on the complainant's emotional and/or physical health, i.e., impact on personal and professional life, lack of trust in employment relationships
• Vulnerability of the complainant — e.g., age
• Objections to the offensive conduct
• Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination
• Anxiety caused by the conduct
• Frequency and intensity of the conduct

See: Ketola v. Value Propane Inc. (No. 2), supra.

39The Commission seeks an award of $10,000 under this head of damages. Based on the submissions of the Commission, the evidence in this case which establishes the intentional and wilful nature of the respondent's behaviour and the deep psychological and physical effects of that behaviour, the Tribunal awards $10,000 in damages for mental anguish.

Special Damages

40The Commission provided a detailed calculation of the wage and other monetary losses suffered by Ms. Sanford as a result of her loss of employment and the discriminatory treatment by the respondent. The affidavit of the complainant also provided a detailed account of her efforts to mitigate her losses. The Tribunal is satisfied that the evidence supports the claim, and awards special damages as follows:

• Lost Wages: $18,570
• Compensation for moving expenses: $666
• Medical Reports: $375

Pre- and Post-Judgment Interest

41The Commission seeks an award of pre- and post-judgment interest on all monetary amounts awarded.

42The Tribunal finds that it is appropriate to award pre- and post-judgment interest on all monetary amounts awarded herein. Pre-judgment interest shall run from the date of the complaint. Post-judgment interest shall run from ten days following the date of this decision. The rates for both shall be in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Public Interest Remedies

43The Commission points out, correctly, that the Tribunal has broad remedial powers and in fashioning remedies should, in addition to addressing past wrongs, seek to ensure future compliance with the Code. It argues that public interest remedies are particularly important where, as in this case, the respondent has failed to participate. In Morrison v. Motsewetsho (No. 2) (2003), 2003 HRTO 21, 48 C.H.R.R. D/51 at § 224 (H.R.T.O.), the Tribunal stated:

. . . [The respondent's] complete lack of inclination to participate in these proceedings, for which he has offered no explanation, causes the Tribunal to conclude that he does not take the law, or his violations of it, seriously. For these reasons, the public interest remedies directed at his future practices are of particular importance.

44Considering the submissions of the Commission and the evidence, in particular the fact that the harassing behaviour was carried on for a lengthy period of time and in the face of repeated advice that it was unwelcome, improper and abusive, the Tribunal makes the following requested public interest remedies, in accordance with s. 41(1)(a) of the Code:

• An order that within two months of this decision, the respondent attend a human rights training program, at his own expense, designed to assist individuals in identifying and addressing instances of discrimination on the basis of sex and sexual harassment, facilitated by an expert on anti-discrimination principles
• An order that the respondent provide the Commission with written confirmation to prove that he has attended such training within a month of its completion

ORDER

45In view of the above, the Tribunal makes the following order:

(i) Within ten days of this order, the respondent, Dr. Gerry Koop, shall pay to the complainant, Sarah Sanford, the following amounts:

(a) General damages in the amount of $25,000

(b) Damages for mental anguish in the amount of $10,000

(c) Special damages in respect of compensation for lost wages in the amount of $18,570

(d) Restitution in respect of compensation for moving expenses in the amount of $666

(e) Restitution in respect of the preparation of medical reports in the amount of $375

(f) Pre- and post-judgment Interest in accordance with the Courts of Justice Act, supra, on all monetary awards. Pre-judgment interest to run from the date of the complaint. Post-judgment interest to run from ten days following the date of this order.

(ii) Within two months of this order, the respondent, Dr. Koop, shall attend a human rights training program, at his own expense, designed to assist individuals in identifying and addressing instances of discrimination on the basis of sex and sexual harassment, facilitated by an expert on anti-discrimination principles.

(iii) Dr. Koop shall provide the Commission with written confirmation to prove that he has attended such training within a month of its completion.

(iv) This panel of the Tribunal will remained [sic] seized with respect to any dispute regarding the interpretation, application or implementation of this order for a period of twelve months.