Murchie v. JB's Mongolian Grill (No. 2)

HR-0846-04, HR-0735-04

2006-11-30

2006 HRTO 33

Ontario Human Rights Tribunal

CHRR Doc. 06-804

Stephanie Murchie (a.k.a. Stephanie McIntyre) Complainant

and

Ontario Human Rights Commission Commission

v.

JB's Mongolian Grill, Andrea Conyers, Angela McQueen and Nic Odd Respondents

Date of Decision: November 30, 2006

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

File Nos.: HR-0735-04 and HR-0846-04

Appearances by: Eddie Taylor, Counsel for the Commission Stephanie Murchie, on her own behalf Andrew Camman, Counsel for the Respondent JB's Mongolian Grill Andrea Conyers, Angela McQueen and Nic Odd, on their own behalf

SEXUAL HARASSMENT — sexual advances by co-worker — poisoned work environment — employer's obligation to provide workplace free from harassment — reprisal for complaining about harassment — RETALIATION — definition of reprisal — harassment after threat to file human rights complaint

EMPLOYMENT — Wall test for reasonableness of employer investigation — obligation to provide workplace free from discrimination — EVIDENCE — credibility of witnesses — DISCRIMINATION — single act of discrimination sufficient to constitute discrimination — DAMAGES — compensation for injury to dignity and self-respect — LIABILITY — personal liability

Summary: The Human Rights Tribunal of Ontario ruled that Stephanie Murchie was sexually harassed while employed by JB's Mongolian Grill, and retaliated against for claiming her rights.

Stephanie Murchie is a young woman who began working at JB's Mongolian Grill in 1996 as a server and waitress. Later, she was a waitress and trainer of other staff.

On December 15, 2001, Ms. Murchie was working a shift at the restaurant and was the closing manager. She went into the kitchen and noticed that the dishrags were not soaking in sanitizing solution. The cook, Nic Odd, was standing with his back to her, and she waved her arm and snapped her fingers to try to get his attention. He turned around and placed his finger on her left breast and deliberately flicked her nipple. Ms. Murchie was upset and complained about this to more senior staff. An investigation ensued but it was so badly handled that Ms. Murchie left her employment.

The Tribunal found that while the sexual harassment in this case was a single incident, it was a very serious one. No employee should have to tolerate having a co-worker flick her nipple. This action creates an intolerable situation for a female employee, and meets the test of being a kind of conduct "known. . . to be unwelcome".

The employer has an obligation to investigate when there is a complaint of harassment, and Ms. Murchie's employer did investigate. However, such serious mistakes were made that some steps in the investigation amounted to discrimination and retaliation against Ms. Murchie.

There was no functioning complaint procedure at the restaurant. A neutral person was not named as the investigator. Both Ms. Murchie and Mr. Odd were suspended, but Ms. Murchie was suspended for a longer time. The employer decided that there was no basis for the complaint. Mr. Odd was informed of the outcome of the investigation before Ms. Murchie. After Ms. Murchie made reference to her rights and sought advice from a lawyer, the ambivalence of the employer about dealing with the incident turned to hostility. Ms. Murchie was sent a letter that implied that she was at fault for precipitating the incident. A memo was posted on the staff bulletin board naming Ms. Murchie and making an example of her to all of the staff for asserting her legal rights.

The Tribunal found that while the initial breach of the Code was relatively minor, the breaches flowing from the shortcomings of the investigation were serious and resulted in Ms. Murchie suffering from additional discriminatory acts including reprisal, which ultimately culminated in her being unable to return to work.

The Tribunal awarded Ms. Murchie $16,000 as general damages and $4,329 as compensation for lost wages, with pre-judgment and post-judgment interest on both awards. In addition, the Tribunal ordered the corporate respondent to retain a qualified consultant to provide anti-discrimination training to its staff. The Tribunal retained jurisdiction for twelve months to deal with any issues arising regarding implementation.

CASES CITED

Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.): 150

deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128 (Ont. Bd.Inq.): 176

Elkas v. Blush Stop Inc. (No. 1) (1994), 1994 CanLII 18421 (ON HRT), 25 C.H.R.R. D/158 (Ont. Bd.Inq.): 176

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 120

Imperial Oil Ltd. v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 176

Imperial Oil Ltd. v. Entrop (1998), 108 O.A.C. 81, 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433 (Div.Ct.): 176

Imperial Oil Ltd. v. Entrop (2000), 2000 CanLII 16800 (ON CA), 189 D.L.R. (4th) 14, 37 C.H.R.R. D/481 (Ont. C.A.): 176

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 159, 161

Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177, [2002] O.J. No.1504 (QL) (Div.Ct.): 174

Laskowska v. Marineland of Canada Ltd. (2005), 53 C.H.R.R. D/262, 2005 HRTO 30: 165

Modi v. Paradise Fine Foods Ltd. (No. 1) (2005), 53 C.H.R.R. D/151, 2005 HRTO 19: 151

Murchie v. JB's Mongolian Grill (No. 1) (2005), CHRR Doc. 05-574, 2005 HRTO 38: 2

Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.): 167

Watt v. Niagara (Regional Municipality) (1984), 1984 CanLII 5042 (ON HRT), 5 C.H.R.R. D/2453 (Ont. Bd.Inq.): 161

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 127: 194

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

s. 5: 165

s. 5(1): 1, 117, 169, 172

s. 5(2): 169

s. 7(2): 1, 117, 121

s. 8: 1, 117, 176

s. 9: 1, 117

s. 10(1): 160

s. 41(1)(b): 191

s. 45(1): 187, 198

AUTHORITIES CITED

Aggarwal, Arjun P., Sexual Harassment in the Workplace (Toronto: Butterworths, 1987): 161

Knight, J., M. MacKillop, & K. Taylor, How to Conduct a Workplace Human Rights Investigation (Toronto: Carswell, 2004): 166

INTRODUCTION

1The complaint before the Human Rights Tribunal of Ontario (the "Tribunal"), dated August 9, 2002, involves a woman who claims that her right to equal treatment with respect to employment without discrimination on the basis of sex has been violated. The complainant states that she was sexually harassed in the workplace, and further claims to have suffered reprisal, contrary to ss. 5(1), 7(2), 8 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The complaint was referred to the Tribunal by the Ontario Human Rights Commission (the "Commission") on April 20, 2004, for a hearing.

2The motion for the production of the complainant's medication documentation took place on September 8, 2005. The motion was dismissed with reasons, see: Murchie v. JB's Mongolian Grill, 2005 HRTO 38 [CHRR Doc. 05-574].

3The hearing on the merits took place in Kitchener on October 11, 13, 17 and 21, 2005, February 14, 2006, March 6—9, 2006, April 26, 2006, and May 2, 2006.

4The complainant, Ms. Stephanie Murchie, now uses the surname McIntyre, but no motion or request was brought to amend the title of proceeding or the complaint, and so the Tribunal continues to refer to her as "Stephanie Murchie, also known as Stephanie McIntyre", hereinafter simply as "Ms. Murchie".

PRELIMINARY MATTERS

5There were a number of preliminary matters in this hearing.

6First, Mr. Taylor requested a witness exclusion order, since he was calling David McIntyre, husband of the complainant. Mr. Camman advised the Tribunal that he would not be certain who all of his witnesses would be until the Commission's case had been put in. Since there was no objection to Mr. Taylor's request, the witness exclusion order was granted.

7Second, Mr. Taylor asked the Tribunal to discount the evidence of the personal respondents, since they have had the opportunity to sit through the entire hearing. The Tribunal reserved on that matter. After careful consideration, this request is declined.

ISSUES

8The Tribunal considered the following issues:

(1) Was the complainant's right to equal treatment with respect to employment without discrimination based on sex infringed by the respondents, contrary to ss. 5(1) and 9 of the Code?

(2) Was the complainant's right as an employee to be free from harassment in the workplace because of sex infringed, contrary to ss. 7(2) and 9 of the Code?

(3) Was the complainant's right to be free from reprisal infringed, contrary to ss. 8 and 9 of the Code?

DECISION

9The Tribunal finds that Mr. Odd violated Ms. Murchie's right to equal treatment with respect to sex and her right to be free from sexual harassment in the workplace when he touched her breast, contrary to the Code. The Tribunal also finds that Ms. McQueen, Ms. Conyers and the corporate respondent violated her right to equal treatment and her right to be free from reprisal, in conducting the investigation in the manner in which they did, contrary to the Code. The Tribunal finds the respondents liable to Ms. Murchie, and has apportioned damages.

LIST OF WITNESSES

10The Tribunal heard evidence from five witnesses, being the complainant, her husband, David McIntyre, who testified on her behalf, and each of the personal respondents, as follows:

(1) Stephanie Murchie, complainant, testified on October 11, 13, 17, 21, 2005

(2) David McIntyre, witness, testified on October 21, 2005

(3) Nic Odd, personal respondent, testified on March 6 and 7, 2006

(4) Angela McQueen, personal respondent, testified on March 7, 8 and 9, 2006

(5) Andrea Conyers, personal respondent, testified on April 26, 2006.

SUMMARY OF EVIDENCE

11There is no dispute that all of the key events in this complaint took place over the span of one week, commencing on Saturday, December 15, 2001, and ending on Saturday, December 22, 2001.

The Parties

12The complainant, Ms. Murchie, is a young woman, who began working while in high school. She began at the corporate respondent in 1996 as a server and waitress, which was her third job. Later, she was a waitress and trainer of other staff. She was elected by the other staff as their health and safety representative. She said Ms. McQueen promoted her to Assistant Manager and Manager of Training, the latter for this location and all future locations. She had been a very dedicated employee until these events unfolded.

13Mr. Odd is a personal respondent. He commenced his employment with the corporate respondent in March 2001, and worked there for two and one-half years. He began as a cook, then was a kitchen supervisor, doing some supervisor shifts near the end of his employment. He was 18 years old at the time of these incidents. Mr. Odd has a child who lives with the child's mother, and expressed his deep commitment to taking care of his son.

14Ms. McQueen is also a personal respondent. She studied Food and Beverage Management at Conestoga College. She began at the corporate respondent in June 1997, on its opening day. She was promoted to supervisor within a few months, and promoted again to dining room manager within a few years. She became General Manager of the Waterloo location in 1999. She now works in the Starbucks in London.

15Ms. McQueen missed the first few days of this hearing, and only appeared when she received a summons from Mr. Camman. Mr. Taylor suggested that it could be potentially contrary to natural justice and fairness to force someone to testify, who does not want to do so, if she may face liability as a result. While the summons was permitted, the Tribunal advised Ms. McQueen when she appeared on March 7, 2006, that she is both a witness and a party. She confirmed that she was not under any duress, as no one was appearing as her counsel. She explained that the only reason why she missed the outset of this hearing was that her employer was short-staffed. She said she was the only person available to work at her new position, and that she had been doing some "double shifts". She appeared to be under no duress, nor did she raise any other issues besides being short-staffed at work. The Tribunal explained that she would testify in chief, and then be cross-examined, and she understood and agreed to it. She also testified that she has her own human rights complaint against the corporate respondent, on a different issue.

16Ms. Conyers is also a personal respondent. She began at the corporate respondent in June 1997, and opened the Waterloo restaurant, starting as an Assistant Manager. She was promoted to General Manager six months later, which position she held for two and one-half years, until she became District Manager in October 2000, which position she held for three and one-half years. She became ill and stepped down, becoming General Manager again. She was the General Manager at the time of these events. She confirmed that, as such, she was second-in-command, and only the owner, Mr. Butkus, was her superior.

The First Incident: Mr. Odd Touches Ms. Murchie's Breast in the Kitchen

17On Saturday, December 15, 2001, Ms. Murchie was working a shift at JB's Mongolian Grill (the "restaurant"), and she said she was the closing manager with no over manager scheduled. She testified that she was performing a walk-through of the restaurant, which the manager does every half-hour, when she went to the kitchen area, and noticed that the dishrags were out on a counter when they should have been soaking in sanitizing solution.

18Ms. Murchie testified that Nic Odd was responsible for the kitchen staff, and she wanted to ask him to put the dishrags in the solution. The kitchen was narrow, it was the dinner rush, and Mr. Odd was standing in the kitchen with his back to her. She attempted to attract his attention by waving her arm and snapping her fingers under his raised arm. There is a dispute about where in relation to Mr. Odd's body this motioning took place. She says her waving and finger snapping took place under his arm. He says, "after she spoke to me a bit, she did flick her hand in front of me, flicking it back and forth in front of my hip area".

19Both Ms. Murchie and Mr. Odd agree that Mr. Odd retaliated by flicking her back. Ms. Murchie alleges it was a deliberate and sexualized touching. Mr. Odd denies that it was sexualized, and claims he was aiming for her arm and missed. He testified that he flicked back at her for the following reasons:

I guess I didn't like her action. It was a reaction to her action, a very inappropriate one.

20He then testified that Ms. Murchie was waving her hands, "in front of my mid-section, my hip, groin and waist". He identified his statement (Exhibit 13) provided to Ms. McQueen, in which he said she had flicked his hip with her finger-tips. However, he testified, "at the time, I thought it was what happened, now I can't remember if she flicked my groin or waved, can't remember". Later on, in the context of saying that, "I was wrong for flicking her back", he added, "What I thought happened at the time, but now I'm not even sure, it's been so long". He maintained that he intended to flick her under her arm, but added, "part of my finger might have touched her upper breast but I didn't think it was offensive and I didn't apologize". Later in his testimony, he admitted that he knew he touched her. He claimed that she stayed there for about two seconds. He said, "At the time, I didn't think it was an invasion of privacy. I didn't think there was a need for an apology".

21In sharp contrast, Ms. Murchie felt it was a very deliberate and sexualized touching of her breast. Her testimony about this incident is as follows:

I approached him, came up behind him. I stood up beside him and said, "Nic, your cloths aren't in sanitizing solution. Do you mind putting them in their buckets?" No response. He was staring forward watching the dishwashers. I thought he had heard me. To get his attention, I waved my arm and was snapping it, under his raised arm. I said, "Nic, did you hear me?" trying to get his attention. I waved my hand and snapped my fingers under his arm, eight inches or more before contact with his body. I swung in the mid-section of his body. My goal was to get eye contact.

Nic responded by turning around to the left to face me. He first stared at my left breast. He placed his finger on my left breast and deliberately flicked my nipple. It happened very quickly, over a period of two to three seconds.

My immediate response was to say, "Why did you do that?"

Nic routinely used a silly voice at work. In his silly voice, he said, "well, that would have been in my private area if you had touched me." I said back, "I didn't touch you." He continued to laugh. I turned around and left the kitchen, walking out the closest door.

22None of the three dishwashers who were standing nearby at the time were called as witnesses. The Tribunal accepts the evidence of Angela McQueen, who said that she spoke with each of them, and that she did not recall any information from them about this incident, and that she would have recorded it if there had been any.

Telephone Calls Subsequent to the Touching Incident

23Ms. Murchie testified that she spent the next half-hour following the touching incident "trying to stay composed til I could deal with it". She called her (then) fiancé, now husband, crying. She said that he urged her to call her boss, Angela McQueen. She said that she went back out to check on the staff, and called Ms. McQueen at home, about fifteen minutes after she spoke to her fiancé, and approximately forty-five to sixty minutes after the incident.

24Ms. Murchie said that when she spoke to Ms. McQueen, "I told her what happened. She asked if I was okay". Ms. Murchie testified that she told Ms. McQueen that she was okay physically, but very upset and not comfortable working around Mr. Odd. Ms. Murchie testified, "she suggested that I avoid him for the rest of the shift and that the issue would be dealt with on Monday because we needed to involve Andrea Conyers, the District Manager".

25Mr. McIntyre testified, and corroborated Ms. Murchie's evidence that she called him that evening in tears, very upset, and said that she had been sexually harassed and inappropriately touched by Mr. Odd. He also confirmed that he suggested she call Ms. McQueen, and asked her to go to the restaurant to deal with the matter, so she would feel safe, since Mr. Odd would be closing that evening with her, since he was the kitchen manager. Mr. McIntyre said that he told Ms. Murchie he was not comfortable with that situation, and asked her to stay away from Mr. Odd, and to stay out in the restaurant. Ms. Murchie agreed to call Ms. McQueen. Mr. McIntyre also offered to go to the restaurant and pick her up early, but she declined, saying she had to finish her shift, since no one else was there as server-manager. He told her not to hesitate to call him if she needed to close and be picked up.

26Mr. McIntyre said that, after this call, he was "fairly anxious" and so, "I decided to phone Angela myself to make sure Angela knew". He described their conversation as follows:

I asked her if she had received the call from Steph and she said she had. Basically, it came out, Angela said she wouldn't go in until Monday, and would deal with it on Monday morning. I thought that wasn't a good idea, I told her she should go in that evening, first for Steph's safety and secondly, to deal with the situation right when it happened. At the end of the conversation, Angela agreed and told me she'd go down to Mongolian Grill.

27Mr. McIntyre testified that he stayed home, and picked up Ms. Murchie at the end of her shift. He could not recall if Ms. McQueen actually went to the restaurant on the evening of December 15, 2001.

28Ms. McQueen testified that Ms. Murchie had called her to advise her of the incident. She described the phone call as follows:

She'd gone into the kitchen to ask Nic, talk about sanitizing the cloths, and she was trying to get his attention, he was talking to the staff. Nic had turned around and flicked her and made contact with her breast.

29Ms. McQueen does not recall Ms. Murchie saying that Mr. Odd's action had been done deliberately. Ms. McQueen said that their conversation then continued:

I listened to her, said I'd speak to both of them, needed to speak to Andrea, and that if it was okay with her, we would wait until Monday. She said that would be fine. I asked if she was okay, and she said she was fine.

30Ms. McQueen said that Ms. Murchie did not express any concerns about working with Mr. Odd the rest of the evening, and if she had, she would have gone down there right away. Moreover, she was surprised because it was Mr. Odd involved, stating, "I would never picture Nic doing something like that". She said that during this call, Ms. Murchie did not demand that Mr. Odd be fired.

31Ms. McQueen said she felt no sense of urgency from Ms. Murchie's call. However, that changed when she received Mr. McIntyre's call. She said, "David called me to find out what exactly was happening and expressed to me how upset Steph was". Ms. McQueen thought Mr. McIntyre seemed, "almost the opposite — he was very upset, very worried and wanted answers right now". She said that Mr. McIntyre wanted her to take care of the situation immediately. At the time she received these telephone calls, she and Ms. Murchie were "very good friends". She laughed when she added, "in my personal opinion, David was being the concerned boyfriend who wanted to take care of his girlfriend, and with Steph, it was more matter-of-fact".

Ms. McQueen Attends at the Restaurant that Evening

32Ms. Murchie testified that she was shocked when Ms. McQueen showed up at the restaurant that evening, about 10:30 p.m. Ms. McQueen corroborated that evidence, when she testified that she arrived at the restaurant just after 10:00 p.m., and saw Ms. Murchie behind the bar, talking to the bartender. She said that Ms. Murchie looked "fine" and was surprised to see her. Ms. McQueen does not know whether or not Ms. Murchie had been crying.

The Second Incident: The Initial Meeting on December 15, 2001

33Ms. Murchie, Mr. Odd and Ms. McQueen all confirmed that Ms. McQueen asked them to attend a meeting that evening, in the office.

34Ms. Murchie testified that she and Ms. McQueen waited for a few minutes before Mr. Odd entered the office, and when he came in, Ms. McQueen said, "Nic, do you know why you are here?" Ms. Murchie said that he replied, "No", and so Ms. McQueen then said, "Stephanie, why don't you tell him". Ms. Murchie then said, "Nic, you flicked my breast and it was totally unacceptable, it humiliated me". Ms. Murchie testified that she added that they were both in positions of authority and needed to set examples for staff, and that this behaviour was completely unacceptable. Ms. Murchie described Mr. Odd as "defensive", and said that he replied, "Well, I'm sorry, I didn't think it was that big of a deal". She said that Ms. McQueen then said to Mr. Odd, "Nic is this what happened?" He purportedly replied, "Well, yeah, but I don't see why it is such a big deal".

35Ms. Murchie said that Ms. McQueen replied, "Well, we'll meet about this further on Monday at 3 p.m. I don't think the two of you should work together between now and then. Before you leave, I'd like you both to make statements as to what happened". Ms. Murchie said that Mr. Odd replied, "I don't have anything to say, what she said is true, so I guess I'll be the one to leave", and he walked out of the office. While he was leaving, Ms. McQueen purportedly said, "Nic, you might as well not come in for your shift tomorrow because Stephanie is working and we'll see you on Monday".

36Ms. Murchie testified that she wrote out her statement at Ms. McQueen's request while Ms. McQueen watched the restaurant. When she asked Ms. McQueen if she should include the events of this meeting, she was advised to only describe what happened in the kitchen, since Ms. McQueen said she would record what happened in the meeting. Ms. Murchie finished her statement (Exhibit 2) within about fifteen minutes, and left it on Ms. McQueen's desk. Ms. McQueen wrote out her statement (Exhibit 3), and came out of her office about forty-five minutes later. Ms. Murchie said Ms. McQueen left and that she was responsible for "sending staff home and closing the kitchen". She said it was a late night closing the restaurant.

37Mr. Odd testified that when he arrived at this meeting, "the first thing that happened" was that "Angela asked me if I knew why I was there", and "I said 'no'". His evidence is that Ms.McQueen said Ms. Murchie had claimed that, "I had flicked her breasts". When he was asked for his version of the story, he said he felt "pretty awful" because "I didn't think what I did was wrong". He testified that he meant to flick her arm, "might have gotten her breast" but that "I didn't take it as a sexual action or wrong". He testified that he did not argue that he touched her breast, and said that he thought during the meeting he was admitting to "accidently flicking her breast". Mr. Odd testified that he apologized but did not think his apology was accepted. He said, "Angela thought it was a good idea for one of us to go home that evening. . . I volunteered to go because I felt that I was being accused of something and I was in the wrong, so I'll go". He added, "I understood I was going home because I was being accused of touching Steph inappropriately".

38Ms. McQueen testified that, when she arrived at the restaurant, she advised Ms. Murchie that Mr. McIntyre had called her, and asked to speak to her and Mr. Odd to find out what had happened. As they were walking to the office, Ms. McQueen and Ms. Murchie were passing Mr. Odd and Ms. McQueen asked him to come into the office as well. She said that Ms. Murchie did not object or react to this request.

39Ms. McQueen testified that Ms. Murchie sat about four feet away from Mr. Odd during this meeting, with "no visible reaction". When Ms. McQueen told Mr. Odd that she had received a phone call from Ms. Murchie regarding the matter that occurred that evening, his reaction was one of confusion. Ms. McQueen testified that, "he had no idea what I was talking about, so I asked Steph to explain it, which she did", but made no reference to deliberately staring or flicking. Once Mr. Odd heard her story, he turned red, became upset, and was even "borderline in tears". She said Mr. Odd apologized several times although he didn't think it was an issue. Ms. McQueen felt that Mr. Odd's apology was not accepted, and described Ms. Murchie as "very matter-of-fact and stern".

The Existing Policy Was Not Followed

40Ms. Conyers testified that the policy manual originated from Fishtail Management, in the United States of America. She said that management went to see Fishtail in or around 1998, and it provided them with a proof copy. She does not believe that the original sexual harassment policy (Exhibit 34) was in the manual when they first received it, but testified that it was in place when these incidents occurred. Although she used to train staff on the policy manual, she admitted that she did not know that the reference to the "Equal Employment Opportunity Commission" was to American human rights terminology. She said that the latter edition of the sexual harassment policy (Exhibit 1) was a 2001 modification. It included a change to the second line, which stated, "no other member of the management team will be informed or involved in the resolution stage", which she believes was partly based on her input.

41It is clear from all of the evidence that the corporate respondent revised its sexual harassment policy prior to these incidents. I find that the sexual harassment policy existing at the time of these events was Exhibit 34. Regardless of which version was in place at the time of the incident (Exhibit 34 or 1), there was nothing in the policy that said the accuser and the accused needed to be together to discuss it, which was confirmed in the evidence of Ms. McQueen. However, because it said, "limited to the individuals involved", Ms. McQueen "thought it meant together, but I'm not sure what I was thinking at the time".

42It is clear from Ms. McQueen's evidence that, while she knew from her telephone conversation with Mr. McIntyre that Ms. Murchie felt uncomfortable with Mr. Odd after the incident, she nevertheless put them together to discuss it. When asked if she was relying on the wording of the policy at the time to do so, she said, "I wasn't thinking of the policy at the time, I was just trying to find out what happened". She did not look up the policy before she acted in this manner. If Ms. Murchie had not been her friend, she might have spoken to them separately, which she described as follows:

In this situation, specifically, Stephanie was a good friend of mine, so to avoid the Steph/Ange friendship business and make it more professional business, have both of them there to see me and tell me what happened.

The Complainant's Request for a Private Meeting and the Purported Suspensions

43Ms. Murchie testified that, while Mr. Odd had left voluntarily on Saturday night, Ms. McQueen had said to him that he should not come in for his shift the next day, which left her with the impression that his suspension was in place.

44Ms. Murchie testified that she was scheduled to work as manager, on the early opening shift, on Sunday, December 16, 2001. She said that she did not know why Mr. Odd was not there, since he was also scheduled to be the opening manager on a shift that ended at 5:00 p.m. She said that she returned on Sunday night to complete the inventory, arriving at 11:00 p.m. and leaving at 2:00 a.m., which was routine.

45Ms. Murchie arrived at the restaurant at 2:30 p.m. on Monday, December 17, 2001, prior to the meeting scheduled for 3:00 p.m. with Ms. McQueen, Ms. Conyers and Mr. Odd, to advise them that she had contacted a lawyer, and to find out if she could meet with them separately. During this conversation with Ms. McQueen, Ms. Murchie told her that she did not feel comfortable, and Mr. Odd had already admitted to it on Saturday night. Ms. McQueen replied with "okay", but then said she could not do it then because she was too busy. Ms. Murchie asked if they could meet after they met with Mr. Odd, but Ms. Conyers said that she was too busy. When Ms. Murchie asked Ms. McQueen when they could meet, she allegedly replied, "I don't know, call me tomorrow".

46Mr. Odd testified that although he had thought he was going home on Saturday night, "that night", he said, "I believe I received a telephone call, I should take the week or a few days off, whatever was suggested". When asked what for, he replied, "I'm not sure you'd call it a suspension, but it was a leave of absence with pay until things were figured out". He referred to it again later on as a call suggesting he "take a leave of absence with pay".

47His testimony was corroborated by Ms. Murchie, who said that she had expressed her concern to Ms. McQueen that if the Monday afternoon meeting with Mr. Odd was not finished by 4:30 p.m., she might run into him when she started her shift. Ms. McQueen allegedly replied that she could not guarantee their meeting would be done by then, but she promised Ms. Murchie that Mr. Odd would not be working his shift that night, and that he would continue to be suspended until the investigation was complete.

48However, Ms. McQueen testified that Mr. Odd did work the evening of the Monday meeting. She also confirmed that Ms. Murchie did not work on Monday, although she was scheduled to do so.

49Ms. McQueen testified in chief that she did not hand out any suspensions during the investigation. During cross-examination, when shown her interview notes, question no. 20, which asked if either Ms. Murchie or Mr. Odd were suspended, she replied that "no one was suspended that night", but added that Ms. Murchie was suspended on Monday. Then she reconfirmed her prior evidence that no one was suspended. When asked again if she did not know if Mr. Odd was ever suspended, she replied that, "I may not have remembered he was suspended", but then she agreed that she may have indeed known that he was suspended, but not recalled it during her testimony the day before. She ultimately confirmed that Ms. Murchie was suspended with pay, when she answered, "I recall Andrea saying something to Stephanie about it because Stephanie asked questions about her pay".

50Ms. Conyers originally testified that "suspension" was the "wrong word", there had never been one in place, because a suspension means there is no pay.

51However, when Mr. Taylor pointed out that both Mr. Odd and Ms. Murchie thought they had been suspended, and then he showed her a document which both she and Ms. Murchie signed, entitled "Appendix L", dated January 10, 2002 (Exhibit 9), that stated, "Stephanie Murchie has received full payment of owing money (130.19). This money is to replace two shifts missed while under paid suspension", she laughed.

52First, Ms. Conyers said that the word "paid" was a mistake. Then, she denied suspending anyone. She still insisted that they "came to that conclusion themselves". Shortly thereafter, she testified that it is possible that term could have been used in a conversation.

53Ms. Conyers later testified that a number of "mistakes" were made by management, and the "first mistake" they made was using the term "suspension", which she said was a "layman's term". (These "mistakes" are described in detail below.)

The Investigation

54Ms. McQueen testified that Ms. Murchie called her on Monday to say that she was not coming to the meeting. Ms. McQueen wrote a statement after that telephone call (Exhibit 17). In it, Ms. McQueen said that Ms. Murchie was very upset that Mr. Odd was employed, and that there were legal implications. Moreover, Ms. McQueen testified that Ms. Murchie was upset that Ms. Conyers was being involved. Ms. McQueen testified as follows:

The only thing I told her was that we had met on Monday, for the meeting, and I was told by Andrea that the matter was being dealt with through the head office and I was no longer involved in the situation, and that an investigation was taking place.

55Ms. Murchie had a different recollection of Monday night's telephone conversation. She testified that she called the restaurant on Monday, to speak to the bartender, because she realized that her counts for glasses were off when she did inventory on Sunday night. While she was speaking to the bartender, she heard Mr. Odd's voice in the background, noting his unique "playful" noises and "distinctive sounds when happy". She said her call to the bartender was very short, and she immediately called Ms. McQueen at home since she was "quite certain it was him" and felt "baffled and tricked at that point".

56Ms. McQueen confirmed during this Monday evening call that it was in fact Mr. Odd working that evening. Ms. Murchie asked why, and Ms. McQueen allegedly said that Ms. Conyers allowed him to work a shift. When Ms. Murchie asked why he was able to work, Ms. McQueen purportedly said that she was no longer allowed to discuss this matter with her, because Ms. Conyers had told her not to do so, which upset Ms. Murchie even more. Ms. McQueen confirmed this testimony, as well. Ms. McQueen testified that Ms. Conyers' direction meant that the information gleaned at the Monday meeting with Mr. Odd was now "confidential from everyone — don't discuss it with anyone", and that included Ms. Murchie.

57What Ms. Murchie did not know was that, during Ms. McQueen's telephone conversation with Ms. Conyers, which was on either Sunday night or Monday, when she conveyed that she was going to have a meeting shortly with Mr. Odd and Ms. Murchie, Ms. Conyers removed Ms. McQueen from handling the matter. As Ms. McQueen said, "she told me I was no longer part of it, that she was taking care of it, her and head office from now on". She said, "I was not in control of what was happening", and agreed with Mr. Taylor's suggestion that she had been "bumped off" the case.

58Ms. McQueen testified that all Mr. Odd knew was what had been discussed during the Saturday evening meeting. To the best of her knowledge, he did not have any separate conversation with Ms. Conyers about what had happened, although Ms. McQueen said, "I think she asked Nic for his side of the story and mentioned they'd investigate it and I don't remember much else".

59Ms. McQueen does not recall giving any direction on Saturday night that Ms. Murchie and Mr. Odd not work together until the investigation was finished. She said, "I think I said for them not to work together that evening". She then added, "I think those were Andrea's words, assume she said that on Monday". Ms. Conyers described the investigation as it related to Mr. Odd as follows:

I had the meeting with Angela and Nic, and Nic gave her his statement [Exhibit 13]. She asked Nic if he knew why he was there, and he said he had an idea. At that moment in time, she read him what Stephanie had given us. She asked him if this is what happened, and he said, "yes."

He made it very clear that he did not intend to touch Stephanie in a sexual way. Yes, he may have made contact with her. He wasn't really looking at what he was doing, but unaware where he made contact. He knew he hit her. He appeared very shaken, and concerned. He was very adamant that he had no intent of any sexual intent whatsoever. He said, "What's going to happen to me and my baby?" He was worried he wouldn't be able to see his son anymore.

We concluded our discussion with Nic. Obviously we were going to have a discussion with Stephanie. Discuss any statements forwarded to Angela. . . make sure they didn't work together until the investigation was concluded.

On that day, Nic Odd did work that night. Prior to the finishing of this meeting, I asked for his keys.

60Ms. Conyers added that, at the end of the Monday meeting, they took Mr. Odd's keys, "to show we were taking it seriously by investigating it", and secondly, "to be fair to both parties", since they had also taken Ms. Murchie's keys. However, since they were "short two people", they asked Mr. Odd to work that day, being Monday, December 17, 2001. She also noted that Mr. Odd was not under suspension, and management was paying them for their time off.

61Mr. Odd's testimony also cast the investigation in an unusual light. While he understood that he was free to return to work on December 17^th, he said that he "never felt the investigation was over".

Ms. Murchie Asserts Her Legal Rights and Retains Counsel

62The situation at the restaurant changed when they realized that Ms. Murchie had retained counsel. Ms. Murchie had been obtaining legal advice from her fiance's uncle since Sunday, December 16^th.

63During Ms. Murchie's telephone conversation with Ms. McQueen on Monday night, when she realized that Mr. Odd was working and Ms. McQueen had been instructed not to discuss this matter with her any longer, she said, "this isn't fair, it's a violation of my rights. I'm going to have to call the Labour Board and go to Human Rights because the way you're treating me isn't fair". Ms. Murchie states that she added that since Mr. Odd was in a position of authority that night, and still under investigation for a wrongful act, there was no one at the restaurant who could protect the rights of the other employees either. She rejected the suggestion made during cross-examination that this situation arose because there was an ongoing investigation taking place, asserting, "I hadn't done anything wrong, he had admitted it. I was told he was suspended and then I learned he was working".

64It was clear from Ms. McQueen's evidence that by Monday, management knew that Ms. Murchie had spoken to a lawyer. As she testified:

Earlier that day, her attorney called the restaurant, by accident, so we knew she had an attorney involved and by her not coming to the meeting on Monday, the situation had escalated.

65Ms. McQueen also explained, "we knew she had a lawyer because a lawyer called the restaurant looking for David by mistake, and we had call display".

66In particular, Ms. McQueen twigged when Ms. Murchie asked for the Manager's Manual. The memorandum that Ms. McQueen wrote on Tuesday, December 18, 2001 (Exhibit 17), stating that she had received a telephone call from Ms. Murchie the night before, indicates clearly that Ms. Murchie had contacted a lawyer, and had allegedly also said that she would be "contacting the civil rights and labour board about the matter". Certainly, once Ms. Conyers was aware of this memorandum, which she received from Ms. McQueen, as she testified, "Puts you in a different frame of mind. Puts you on the defence".

67Ms. McQueen has her own human rights complaint outstanding against the restaurant on a different issue.

68Ms. Conyers testified that, when she went to the Monday meeting with Ms. McQueen and Mr. Odd, she already had Ms. Murchie's statement (Exhibit 2) and Ms. McQueen's statement (Exhibit 3), both dated December 15, 2001. When she arrived at the restaurant and was told that Ms. Murchie was not attending the meeting, she said, "it was indicated to me that she didn't want to be in the same room as Nic Odd and that she had spoken to a lawyer, who'd indicated that she shouldn't go".

69Ms. Conyers testified as follows as to the differences between Ms. Murchie and Mr. Odd:

. . . based on their demeanours, all that Nic cared about was how it would affect him and his son, he was visibly upset, but the meeting with Stephanie was very different. She was very demanding, wanted the management log, had already confided in a lawyer. They had two different demeanours. . . Stephanie would have been allowed to work if she wanted to and I can't explain why Stephanie feels she was suspended.

The Tuesday Meeting Between Ms. Murchie, Ms. McQueen and Ms. Conyers

70Ms. Murchie testified that she was scheduled to work on Tuesday, and was supposed to manage the Waterloo location from 5:00 p.m. until closing, but she did not work her shift. Rather, she called in, and Ms. McQueen answered, who had to call her back, and did so at 1:30 p.m. Ms. Murchie requested that Ms. Conyers meet her prior to her shift, and they agreed, asking her to come in at 2:30 p.m. Ms. Murchie had called her lawyer about the fact that Mr. Odd had worked the night before, and her subsequent call with Ms. McQueen. He suggested that she make notes of the questions she had, which she wrote out prior to the meeting (Exhibit 4).

71Ms. Murchie asserts that Ms. McQueen directed her to booth no. 9, at the front end of the restaurant, rather than hold the meeting in the office. When she asked why the meeting would not be in the office, Ms. Murchie says that she was told the office was full, that they would meet her at booth no. 9, and that Ms. Conyers walked away. She said there were employees on duty at the front of the house, as well as regular customer tables on either side of booth no. 9. Ms. Murchie said that she felt intimidated by the location of the meeting, testifying, "I thought, how am I supposed to have a conversation with customers and employees all around us? I took it they didn't want me to talk about it. I felt threatened by it".

72Ms. McQueen confirmed that this meeting was in the restaurant in either booth no. 8 or no. 9, but said that to her recollection, "Steph asked for a public place, because that is what her lawyer advised her". Ms. McQueen also thought Ms. Murchie brought a friend to the meeting, either Sara or Kristen, but her memory was quite uncertain about who it was.

73Ms. Murchie said that she waited five to ten minutes for Ms. Conyers, who came in with Ms. McQueen. While she was waiting, she said other employees came up to her to initiate a conversation. "I remember feeling so stupid sitting in the middle of the restaurant in the middle of the day".

74Ms. Murchie said she advised them that she had some questions that she wanted them to answer and needed the opportunity to tell Ms. McQueen what happened. She said she went through her questions nos. 1—10 (Exhibit 4), and wrote down Ms. McQueen's answers. She said, "The more answers I got the more upset I got".

75According to Ms. Murchie, prior to asking question no. 7, Ms. McQueen asked her to submit her keys. She said, "I completely fell apart, when she asked me to hand in my management keys, I couldn't even recall asking question no. 7 at that point". She said that Ms. McQueen also advised her that they were changing the management pass-code, and that she would not be allowed on the premises until the matter was resolved. Ms. Murchie said that Ms. Conyers raised her voice when she added that it was a very serious accusation and that they had to go through everything as a result. She also said that the managers did not know the situation.

76Ms. Murchie reacted to this and said that she "fell apart when they took my keys because it was then that I felt I was totally being blamed for Nic's poor choice. I was baffled. It wasn't that she said it in a professional or comforting way, it was really said in a harsh way with her voice raised and I felt punished. I was banned from the premises. I was only being paid for a week, but it could take months. I panicked. I needed the income. I felt hurt and threatened by the way that the investigation was being handled. I hadn't expected that at all". She recalled that other staff were clearing off the nearby tables while she sat there crying. The only question Ms. Conyers had for her was to ask her if she had told anyone, to which she replied Kristen, and they said they would speak to her.

77According to Ms. Conyers, Ms. Murchie seemed "very controlled" at the outset of the meeting, writing down answers to her questions. As she recorded these answers, she "became more agitated, contradicting things Angela was saying. . . Stephanie became more demanding and focussed on what she wanted. She wanted management logs and documentation, and things she wanted out of the files. I declined and it seemed to upset her". She added that when she asked Ms. Murchie for her keys and code card, she "started talking about lawyers and wanting this and wanting that and demanding the log. I believed she'd come back and get all these things".

78Ms. Conyers also said that Ms. Murchie asked them why they did not believe her. She said that Ms. Murchie became upset and we let her regain her composure. Ms. Conyers testified that she does not know why Ms. Murchie thought they did not believe her, and said to Ms. Murchie, "this is why we're having this meeting Stephanie because you've made a serious allegation". Ms. Conyers also testified that Ms. Murchie asked if "we were suspending or firing him and wanted to know why he wasn't fired. I said we were not firing him because we were investigating it", and told her that they "needed to investigate it fully". Ms. Conyers told Ms. Murchie that they would try to schedule them separately, but that operationally, it would be difficult.

79When asked, Ms. Conyers said that she did not believe Ms. Murchie's human rights were violated, saying, "I believe she was hit in the breast. I believe she thinks it was something more. But we believe it was horseplay and nothing more". She testified that they concluded there was "no evidence it was a sexual touching" and that is why Ms. Conyers did not believe it was sexual harassment.

80Ms. Murchie testified that, during this meeting, they told her both she and Mr. Odd were banned from the premises while the investigation was going on. Before this meeting, she had been scheduled to work that evening starting at 5:00 p.m.

81She said that she felt "betrayed" when she left that evening. Before her fiancé arrived, she said the other staff kept approaching her, asking her what she was doing.

Hearsay Statements Permitted

82Over the objection of Mr. Taylor, the hearsay statement of Fernando was entered by Mr. Camman during Ms. Conyers' testimony (Exhibit 35), subject to a later determination of what weight, if any, to accord it. The author of the statement was not called to testify, and no reason for his absence was provided. In the statement, he indicated that on December 15, 2001, prior to the incident with Mr. Odd, Ms. Murchie had been upset, argumentative, felt walked on, was frustrated with internal performance problems, was "sick of being the nice, friendly manager" and said that she "guessed from now on, she is going to have to be a bitch, and completely by the book".

83Over the objection of Mr. Camman, the hearsay statement of Sara was entered by Mr. Taylor during Ms. Murchie's testimony (Exhibit 5), also subject to a later determination of what weight, if any, to give it. This statement was given to the Commission, who received it from its author before she left the country. This statement indicates that Sara saw Mr. Odd go into the restaurant on the evening of December 19, 2001 and use his keys to lock the office, while he was presumably suspended. Ms. Murchie testified that she received a call from Sara on Wednesday, December 19, 2001, to this effect, and since she had been told not to discuss the matter, she simply asked Sara to write a statement.

84Both statements are being given no weight, since neither statement is direct evidence nor do they provide any relevant information that cannot be gleaned from other evidence that has been tested.

No Direct Interaction Between the Parties on Wednesday or Thursday

85It was clear from all of the testimony that the parties did not interact on Wednesday, December 19, 2001, or Thursday, December 20, 2001, and that Ms. Murchie was at home during this time.

The Memorandum Posted on the Staff Bulletin Board

86Ms. McQueen testified that she received a call from Mr. Butkus, who instructed her to post an undated memorandum (Exhibit 8) on the staff bulletin board regarding this situation, since there had been some gossip in the restaurant about it. He dictated the memo to her, which refers to Ms. Murchie by name, but not Mr. Odd. It states as follows:

Attention All Staff Members

There has recently been an incident that has occurred involving Stephanie Murchie. Some staff members may be aware of this incident directly through Stephanie or from through [sic] other means. Any staff members that want or need to discuss this matter any further are more than welcome to come talk to myself directly regarding this situation. I would like to make sure that everyone is fully aware of the situation in all aspects so that we can reduce the tension that has been created due to this matter. I am open to listening and discussing this matter with you to avoid any one sided viewpoints or confusion.

Thank you for your understanding

Angela McQueen

87Ms. McQueen agreed with the suggestion put to her by Commission counsel that it presumed the reader had knowledge of the incident, since it did not describe it. Moreover, she agreed that it was "counter-productive" to ending the gossip, and that it was posted after Ms. Murchie had been instructed not to discuss the situation, and insinuates that she had been telling the staff. She also confirmed that Ms. Murchie was not in the restaurant when it was posted mid-week, she was at home. She agreed with the suggestion that Mr. Butkus violated the policy of not discussing investigations, through her, by posting that memo.

88After this memo was posted, the staff reacted. Ms. McQueen said that Kristen and Sara came to talk to her, and Wagamuth resigned. She had no recollection of Matt's reaction. Ms. Conyers testified that Matt resigned over the way in which this matter was handled.

89Ms. Murchie was clearly upset and sobbing when she testified about this particular incident. She said, "I was so hurt. It was so unlike Ange to do this. . . How do I come back to a job, that they have just posted for every staff member to see". Then she added that this incident made her feel "very betrayed". She felt that her "confidentiality" had been violated.

90Ms. Murchie also expressed anger at this incident. She had been told not to discuss this matter with anyone, and "here it is posted on the scheduling board that everyone checks everyday". She was also angry that if staff were upset about it, their feelings would be acknowledged when hers were not. She said, "I felt it was pretty cruel to listen and discuss this with staff who were not involved when they wouldn't do it for me".

91On Friday night, Ms. Murchie said, "I walked out of there with two notes. The letter that said I won't be protected and on the other hand, the letter to all staff letting them know what happened to me". The die had been cast, "I felt I couldn't go back there, not with any dignity or any sense of safety".

92When Ms. Conyers testified about the six "mistakes" made by management, she included the note on the board as one of them. She said it was done because of poor morale, and one-sided opinions, but that "having Stephanie's name in there was a mistake".

Friday, December 21, 2001: Management's Decision

93Ms. Murchie testified that she received a telephone call from Ms. Conyers late in the afternoon on Friday, December 21, 2001, advising her that after speaking to her lawyer, Mr. Steele, Mr. Butkus and Mr. Odd, and the staff that were present, that, "I had no grounds for my complaint of sexual harassment and Nic had done nothing wrong". They had concluded that it was an accidental touching. She cried when she testified that, "I don't know that they knew that". She said that Ms. Conyers had agreed that she may not agree, and also, that it was ultimately her word against Mr. Odd's word. Ms. Murchie said that she still cannot accept that Ms. Conyers concluded Mr. Odd's version was more likely than hers.

94She was further advised that both she and Mr. Odd were expected to return to work on their next scheduled shifts, and that if she did not return, she would not be on paid leave that day. She added that Mr. Odd might not want to work with her, either. Ms. Conyers advised her that a formal decision letter would be left in her manager's mailbox. She said that the investigation was closed and there would be no further discussions. Ms. Murchie said that she protested that they did not ask her what had happened. Her notes made based on this call were entered as evidence (Exhibit 6).

95Ms. Conyers' evidence was similar on this point to that of Ms. Murchie's. She testified that "management wanted to finish it and move on, since Christmas is a very busy time of year". The next step taken was to contact Mr. Butkus and Mr. Steele, and she faxed some information over to Mr. Steele's office. She said, "based on all the information we had, we concluded it was horseplay, and there was no intentional sexual harassment". She said that they informed Mr. Odd of the decision, and told him he could return to work.

96Ms. Conyers also said that she tried to contact Ms. Murchie on Wednesday, but she was not at home, and so she did not speak to her until Thursday or Friday. She added, "I didn't want to leave a message on her machine. When I did speak to her, she didn't like the answer". She advised Ms. Murchie of their decision and said there was a letter in her box in a sealed envelope, which she had sealed herself and signed on the back.

97Ms. Murchie testified that she cannot recall whether the letter was in a sealed envelope or not, nor can she recall if it had been signed on the back. She said, "I had a problem with its content, not its delivery".

Management's Decision Letter

98Ms. Murchie picked up the decision letter on Friday, December 21, 2001 (Exhibit 7). It states as follows:

Friday, December 21, 2001

Dear Stephanie,

Your request to fire or suspend Nic Odd without a thorough investigation of the complaint is unacceptable, as you requested to Angela McQueen by phone and to me in person during a meeting Tuesday, December 18, 2001. We cannot simply fire anyone based on a complaint from another staff member without a thorough investigation. We do have an obligation to all our staff members.

Nic is very upset by your complaint and is very apologetic for anything he may have done. I believe his letter to you expresses his feelings regarding the matter quite clearly.

We have spent a great deal of time investigating your complaint including our discussions with you and Nic Odd. We have also received verbal accounts from the three witnesses who were also present at the time in the kitchen. It is unfortunate that you declined to have a meeting with all the parties on Monday December 17^th.

I would like to remind you that this whole situation was started by you when you were trying to get Nic's attention in the kitchen. You should realize this is contrary to our policies and procedures and might have created an unsafe situation in the kitchen.

We have decided that there is no basis for the complaint against Nick Odd and that he will be returning to work immediately. I realize that you may disagree with this conclusion. If you do not wish to work on the same shift with Nic we will do our best to try and accommodate that request although we are not obligated to do so, and operationally may not be able to do so. Realize that Nic may also prefer not to work with you although we have not had that discussion with him. If you would like to return call me immediately so that we can adjust the schedule. If you would like to take time off I can accommodate you although it will not be paid. I would need sufficient notice prior to returning to be able to adjust the schedule.

I would like to caution you that you should not be discussing this matter in the restaurant. Further, if you were to work any shifts in a supervisory capacity there is an obligation on your part, and our requirement, that they be completed in a professional manner with no regard to this incident, in particular how you deal with other staff.

Please call me as soon as possible. We have spent considerable time on this and need to conclude it.

Andrea Conyers

District General Manager

99Ms. Murchie testified at length about her issues with the content of this letter. Her reaction to this letter was anger. She sobbed as she said, "I was mad, everything she said was untrue. It all seemed too calculated at that point, similar to what she was saying on the phone. . . it infuriated me, because it was so full of lies. It made me feel like I had asked for this and I was the one responsible for the poor choices made by other people. I felt it was all a big cover-up, that's it". In particular, her key disputes with it are as follows:

• She claims not to know why management alleges she wanted Mr. Odd to be fired, and points out that the suspension was put in place by management, not by her. She only spoke to Ms. McQueen on Saturday night and Monday, and did not call Ms. McQueen at any other time, so she had no opportunity to make such a request, and denies doing so in any event. Moreover, she said, "I didn't want Nic fired. It wasn't my decision to make, all I wanted was for us to be treated fairly. I didn't want anyone to lose jobs over it . . . that came out of nowhere".
• She was offended by their comment about having an "obligation to all staff members" since she feels they owed her an obligation, too.
• She disputes the sincerity of Mr. Odd's purported apology, first stating that it was "so out of place" for Ms. McQueen to apologize on his behalf in this letter, testifying, "he could have said it himself" but that he never did. She referred to his own letter to her (Exhibit 16) and said that, "I believe his letter expresses his feelings quite clearly". She also testified, "I received a letter after I no longer worked there, from a manager who took it upon herself to deliver it to me. I received a telephone call from Kate. . . believe she brought it to my home. . . it was sometime after".
• She disputes the notion that her call with Ms. McQueen was her opportunity to tell her side of the story, although she is at a loss when testifying to say what else she could have said that would have had any impact.
• She was angry that they would not arrange separate schedules, stating, "they couldn't guarantee I was safe, not only from Nic but from them".
• She denies flicking Mr. Odd, and resents the statement in this letter that said the whole incident was started when she tried to get his attention.
• The reference to "if" she worked shifts in a supervisory capacity also upset her, because she said, "I was a manager" and "so of course I intended to work shifts in a supervisory capacity". She drew the conclusion that "now" her job was itself an "if".
• She felt threatened where the letter cautions her [to] act professionally and not to talk to other staff, explaining that she felt both her herself [sic] and her livelihood were at risk.
• She rejects the notion that any of her actions were "contrary to policies", since she did not touch Mr. Odd and does not believe she has violated any of their policies.
• Where the letter indicated that they found "no basis" for her complaint, she was upset, since Mr. Odd had admitted to touching her, and it was "so malicious to tell me that I didn't have the right to complain".

100After describing her issues with the decision letter, Ms. Murchie determined that, "the whole investigation was concluded before it began".

Events of Saturday, December 22, 2001

101Ms. Murchie testified that she went to the restaurant on Saturday, and saw Ms. McQueen for two specific reasons: first, to sign the statement she had made; and secondly, to let her know that she did not feel safe working there anymore, and that effective immediately, she could not return to work. She told Ms. McQueen that it was a situation of constructive dismissal. She asked a kitchen supervisor named Matt to stay and hear her request to have Ms. McQueen sign it.

102During her conversation with Ms. McQueen, Ms. Murchie asked her if the investigation was completed, and she said yes. She said that Ms. McQueen refused to sign her statement, saying that she could not do it without Ms. Conyers' permission, even though she admitted that it was her statement in the presence of Matt.

Subsequent Events

103Ms. Conyers testified that the morale in the office was generally "very divided, very low and very gossipy" and that Matt had resigned over it.

104Ms. Murchie testified that she subsequently received her Record of Employment ("ROE"), in the mail. She went back to the restaurant in early January on two separate occasions to pick up her final cheques, since the first cheque was short by two days. She said that her wages have now been fully paid.

Did Mr. Odd Apologize?

105With respect to whether or not Mr. Odd ever apologized to her, different accounts were heard on this issue. Ms. Murchie maintains that he did not, and that management's apology on his behalf in the decision letter was offensive.

106Mr. Odd's own testimony, in chief, was that while his reaction to her flicking was inappropriate, it was unintentional. He said, "Part of my finger might have touched her upper breast but I didn't think it was offensive and I didn't apologize". He added, "At the time, I didn't think it was an invasion of privacy, I didn't think there was a need for an apology".

107In his undated, handwritten statement (Exhibit 13), he wrote:

Dear Angela

This is my statement of what happened on Saturday December 15^th. I was speaking with the dishwashers in the dish pit standing in front of the ice machine. Steph Murchie came in to ask me if I could [sic] a bucket to fill with sanitizer for cleaning rags. After she asked me she flicked my hip with her finger tips. I turned around immediately to flick her back, wether [sic] I intended to flick her in the top of her left breast or her arm or shoulder it was not planed [sic]. Yes I got her in the top of her breast, no I didn't intend to nor did I intend to make it look like a sexual action. She did not say anything at the time she kept walking out to the dinning [sic] room. I thought even an accident like this could be laughed off considering we do joke around a lot. Obviously not. I am very sorry, from my perspective I will be able to work under all conditions with this person.

Nicolas Odd

108He testified that he wrote this statement at the restaurant. He said that in retrospect, he would change the sentence about hoping they could "laugh it off".

109He did write Ms. Murchie a separate note (Exhibit 16), but said, "I didn't hand it to her personally, I put it in her cubbyhole in the office the day I wrote it". He believes he wrote it the day "I was asked to come in and fill a shift when we were both on our leaves of absence". It states as follows:

Dear Steph

This is a letter of my deepest apologies. I would not of even thought that an accident would be taken this far. Obviously I was wrong. When we were in the dish pit and you flicked me on the hip without even thinking, my natural reaction was to flick you back. I did not intend to get you in the top of your left breast, shoulder even arm for that matter. With the reaction you gave me I didn't think it was a big deal at the time. I just plain thought your day was going bad and you needed to be left alone. It wasn't until Ang came and called me in the office with you till I knew you took offense to what had happened. You may not be able to work with me anymore but I will have no problems working with you. Please remember I did not intend to perform a sexual act upon your space and I am very sorry it had to come to this. Please eccept [sic] my appologies [sic].

Nicolas Odd

110During the Saturday evening meeting with Ms. Murchie and Mr. Odd, Ms. McQueen testified that Mr. Odd had not thought it was an issue and that he apologized several times, after hearing Ms. Murchie's account of what happened. Ms. McQueen said he had turned red and looked like he might cry. Ms. McQueen said that Ms. Murchie's reaction to his apology was non-acceptance, and that she seemed "very matter of fact and stern". Ms. Conyers described Mr. Odd as being "visibly upset", versus Ms. Murchie, whom she found to be "very demanding". Based on their "demeanours", Ms. Conyers soured on Ms. Murchie.

Mr. Odd's Prior Antics

111Ms. Murchie testified that prior to the incident with her, Mr. Odd had engaged in inappropriate behaviour at the restaurant. She described it this way:

Nic was a very goofy employee. In my opinion, he behaved unprofessionally for someone in a position of authority. . . When he was excited, he'd lift up his shirt and flick his nipples — he was hyper. He acted silly within the kitchen, hooting and hollering, grabbing the butts of other guys. He pretended to have sex with another guy. He'd lift his shirt, rubbing his nipples, and dance around. He touched another worker there. A lot of groping of butts of other guys. . . the kitchen was a very strange area.

112She did not bring this behaviour to the attention of management, stating, "I'm an assistant manager to Angela, I'm not his boss". She added that Mr. Odd was not a bad manager, he could do the job, "he just had a very different approach than I did, but I wasn't his boss".

113Mr. Odd confirmed that he used what Ms. Murchie had termed "goofy voices" at work. He said they were "impersonations" that he based on "actors and comedians" and added, "I was trying to be funny, I guess". He also agreed that he would "dance around", "lift up my shirt", and engage in "dry humping" the kitchen staff. He said that in 2001, he was only 18 years old and immature. At the time, he thought that his co-workers liked his antics and found them "funny".

114Surprisingly, Ms. McQueen testified that she could not think of any prior problems with Mr. Odd's behaviour, stated that she had not had any complaints from female staff, and was shocked when the incident with Ms. Murchie occurred, stating, "I would never picture Nic doing something like that".

Management's Self-Described "Mistakes"

115During her evidence in chief, at the end of her testimony, Ms. Conyers articulated what she believes were management's "mistakes" as follows:

• The use of the word "suspension" was a mistake. She said this term was never used in the beginning, but then it was used and misused. She said that no one was ever suspended by her or Ms. McQueen.
• The manner in which the investigation was conducted was also a mistake. She said this was their first investigation, and some of them may not have known how to proceed.
• The meeting held with Ms. Murchie in the dining area was another mistake. She claims this was at Ms. Murchie's request, but said that this should have been documented.
• She said that the taking of the keys from Mr. Odd and Ms. Murchie was a mistake. She explained that Ms. Murchie had been "very aggressive, she had talked about a lawyer, civil rights. . . and we were wrong and I felt she'd come back into the building and have taken the log book".
• She testified that putting the note on the board was also a mistake. She said they did it because of poor morale, rumours and one-sided opinions, but "having Stephanie's name in there was a mistake".
• She also said the mistakes made in Ms. Murchie's final pay were an "honest oversight" which flowed from her working in two different locations. She said the pay errors were rectified once they were aware of them.

116Ms. Conyers also testified that, if management had concluded that Mr. Odd's action was "a deliberate groping," he would have been fired.

FINDINGS OF FACT AND LAW

117After serious consideration of the viva voce evidence of all witnesses, and the documentary evidence that has been submitted, I am satisfied that the Commission and complainant have shown a prima facie case of discrimination on the ground of harassment because of sex in the workplace based on a single but serious incident, as per ss. 5(1), 7(2) and 9, have demonstrated a prima facie case of discrimination flowing from an unreasonable investigation, contrary to s. 5(1), and several incidents of reprisal within the investigation, contrary to ss. 8 and 9 of the Code.

Summary of Findings

118The following is a summary of the findings made with respect to Ms. Murchie:

(1) Her right as an employee to be free from harassment in the workplace because of sex has been infringed by another employee, contrary to ss. 5(1), 7(2) and 9 of the Code.

(2) Her right as an employee to be treated reasonably during an investigation has been infringed, contrary to s. 5(1) of the Code.

(3) Her right to be free from reprisal has also been infringed, contrary to ss. 8 and 9 of the Code.

(4) Liability flows from these breaches of the Code.

119Below are the reasons for these findings of fact and law.

The Credibility of the Parties and Witness

120Much thought has been given to the credibility of the parties and the witness. I have weighed the test established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357 (B.C.C.A.), against the evidence heard and presented, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

121Careful consideration has been given to the evidence provided by the complainant. Overall, her recollection of Mr. Odd flicking her breast on her nipple, as a retaliation for snapping her fingers in his hip area without touching him, rings true and more than meets the balance of probabilities test. Although it is a single incident, it is a serious one, and s. 7(2) of the Code is meant to protect individuals in the workplace from such an act by a co-worker.

122In particular, Mr. Odd admitted during his testimony and in his statement (Exhibit 13), he had intended to flick her back. However, he denies having intended to touch her breast. I reject this evidence, and find that management erred when it concluded that this single incident was merely "horseplay".

123Mr. Odd had a propensity for sexualized antics in the workplace with co-workers prior to this incident with Ms. Murchie, which at the time, due to his youth and immaturity, he thought were comical. Based on the evidence of both Ms. Murchie and Mr. Odd, I find that his sexualized antics included routinely lifting up his shirt and flicking his own nipples, and simulating other sexual acts with other co-workers.

124However, Ms. Murchie exaggerated part of her version of events at this hearing, which impacts on her credibility. I give no credence to her evidence about being forced to wear baby t-shirts, and prefer Ms. McQueen's account of that incident, for the reasons set out below. Nor do I find that Mr. Odd deliberately stared at her breast before flicking it. While Mr. Odd's apology may have been late in coming, perhaps insincere and possibly even coerced by management, it is nevertheless wrong to say that he never apologized, or to say that his apology was delivered by someone else after Ms. Murchie no longer worked at the restaurant.

125This mixed finding of fact is based on the following evidence:

• In her statement dated December 15, 2001 (Exhibit 2), Ms. Murchie indicated that he "took it upon himself to flick" her breast, and when asked why, purportedly said, "well, that was MY private area".
• In her intake questionnaire (Exhibit 11A), she said, "Nic responded by placing his right hand on my left breast and flicking my nipple. This action was immediately followed by his laughter".
• Her complaint (Exhibit 11B), dated August 9, 2002, is virtually identical to her intake questionnaire in this respect.
• Her witness statement (Exhibit 11C), also corresponds to her intake questionnaire and complaint, although it added that he used his "silly voice" to answer her.
• However, during her viva voce testimony, she dramatically said, "he first stared at my left breast". She denied the suggestion made by Mr. Camman that she had improved upon her evidence, although she agreed that the first time she mentioned Mr. Odd's purported stare was at this hearing.
• The newness of her allegation that she was forced to wear baby t-shirts to work, which was refuted by both Ms. McQueen and Ms. Conyers (see below).
• Her insistence that Mr. Odd never apologized until after she no longer worked at the corporate respondent, despite his letter of apology entered as an exhibit, and the viva voce testimony of Ms. McQueen that he apologized verbally and was on the verge of tears, but that Ms. Murchie would not accept it.
• Her evidence about her promotion to "Manager of Training" was exaggerated (see below).

Ms. Murchie's Evidence About Uniforms

126Ms. Murchie testified that she had had earlier clashes with Ms. Conyers, particularly with respect to a staff meeting in which she opposed a new policy on uniforms that would have female staff clad in "baby t's", which were undersized and revealing garments. She said that she opposed them because she did not want her "bellybutton showing". She said that she also opposed the shoes they selected for health and safety reasons.

127During cross-examination, she then said this was the kitchen uniform, and that managers wore regular clothes. She denied being offered a choice of wearing either baby t-shirts or regular t-shirts. She also refuted the suggestion that she was a supervisor at the time, and as such, she should have known she had a choice.

128In contrast, Ms. McQueen said that the policy manual had always listed "shirts" as the uniform, and that the uniform changed several times while she was there, but always included a shirt. Specifically, she said that the uniform changed six to eight times while she was there, with four different t-shirts, being two different golf shirts and one long-sleeved shirt. She said that the organization furnished the shirts. She also said that the employees decided which t-shirt to wear, "we offer shirts to them and they decide which ones they'd like to wear". The shirts were all approximately the same cost, perhaps with "a dollar or two difference", and that the restaurant docked their pay to cover the cost of the shirts. She cannot recall which staff members wore which kind of t-shirts.

129Ms. Conyers denied that any confrontation took place between herself and Ms. Murchie regarding the t-shirts. She said there were two options, either a baby t-shirt or a t-shirt, and that Ms. Murchie had chosen the baby t-shirt to wear. She also denied the assertion made by Ms. Murchie that she may have had some animosity towards her.

130The allegation that she was forced to wear baby t-shirts as her uniform, rather than being optional, was not in her complaint, and based on all of the evidence I have heard, fails to meet the balance of probabilities test.

Was Ms. Murchie a Manager?

131Ms. Murchie insisted throughout the hearing that Ms. McQueen had promoted her to "Manager of Training". She said this title applied to the Waterloo location, and all future locations. She also insisted that in December 2001, she spent 80 percent of her time working as a manager and 20 percent of her time working as a trainer.

132Ms. McQueen was the General Manager at the time. She said that Ms. McQueen had invited her over to her apartment one night, discussed their plans for expansion with her, and said, "we'd like you to be our Manager of Training" because they were very impressed with how she had opened the Cambridge location.

133Ms. Murchie testified that she did not receive a confirmation letter, nor an increase in pay, "because she labelled the job already done, continuing my responsibility, and she talked about offering me a salary raise". In terms of putting her on salary, Ms. Murchie said, "we discussed it as a possibility in the future".

134She maintained that she had the independent authority to fire, but not to hire, stating, "I did the first interview", and that Ms. McQueen would do the second.

135During cross-examination, she characterized it as a "new position".

136Mr. Odd commented that Ms. Murchie "was after me to do stuff all the time. . . I felt that sometimes when she approached me she was bitchy". He said he was unaware that she was a manager with a "capital m". He thought she was in charge of the dining room area on her supervisor shifts, and other times, she was on a serving shift, and that she was also part of the train the trainer team.

137Ms. McQueen testified that Ms. Murchie's duties in December 2001 consisted of "three things": a server; one of the supervisors for the front of the house; and on the training team. She said that Ms. Murchie "filled in shifts" when the managers were not there. She said that, in terms of training, Ms. Murchie would be "essentially taking it over" but that she was not the manager. She confirmed that she never gave Ms. Murchie a letter about this nor did she change her position.

138Ms. McQueen identified a document, which was Ms. Murchie's "Employee Status" form on letterhead (Exhibit 18). It indicates that Ms. Murchie is a department "Manager". She also confirmed Ms. Murchie was given a wage increase to $12 per hour. Similarly, biweekly summaries (Exhibit 21-33) identified by Ms. McQueen also indicate that Ms. Murchie was a "manager".

139Ms. McQueen was permitted later on to correct the information about whether or not Ms. Murchie was a manager, stating, "You were told to be managing the training team and I gave you the material with respect to that, but I never told you that you were a manager".

140Ms. Conyers also denies that Ms. Murchie was ever a manager. She said that she was a front of the house supervisor and a server. Because Cambridge was a new location, they used some Waterloo supervisors there more frequently. She believes that Ms. Murchie did some shifts there, but cannot say with certainty what their roles were. However, she insisted that she was not a manager, but a front of house supervisor.

141When Ms. Conyers was shown Exhibits 18—33, which indicated that Ms. Murchie was a manager, she said that the categories used on those documents were based on head office categories, which permitted them to have 18.5 percent productive labour. The number of front of house supervisors and managers is fixed, because head office does not consider them to be productive labour. Thus, Mr. Odd is classified as a cook, even though he is supervising. Ms. Murchie was set up in the program in the manager category.

142Ms. Conyers testified that, despite this documentary evidence, Ms. Murchie should have known she was not a manager, for several reasons. First, she was not salaried, but paid hourly as a front of the house supervisor. The managers were all on salary. Secondly, she did not receive five shifts per week. Thirdly, the staff who were the "real managers" were not listed on these documents. Finally, the only manager positions in 2001 were: General Manager, Bar Manager, Service Manager, Kitchen Manager and they were all filled.

143The evidence on whether or not Ms. Murchie was a manager was highly contradictory. It is also complicated by the fact that the corporate respondent had some organizational issues when it set up new restaurants, ergo not knowing what her final pay should be because she had been working in two different locations. I find that Ms. Murchie was functionally a junior-level manager, routinely filling in for missing managers and taking over the training program in a managerial role. Again, while the crux of her evidence was true, she was responsible for training, I find that she omitted key information about her role in order to put herself in the best possible light. She was certainly not a salaried, senior-level manager, she had not received that official promotion to "Manager of Training", and she knew enough of the administration of the corporate respondent to know that and be able to testify more accurately.

The Reliability of Ms. Murchie's Evidence

144Over the objection of Mr. Taylor, who argued the question was only meant to embarrass her, arguing that she has not sought damages for mental anguish, and noting that I had refused the motion seeking her medical records based on this same allegation, I nevertheless allowed Mr. Camman to ask Ms. Murchie if she ever recalled an occasion when she was found underneath the table in a fetal position, crying uncontrollably, during working hours, since I accepted his submission that it could potentially indicate the reliability of her testimony. She denied it occurred and responded by saying simply, "no". He said he would call Ms. McQueen to say it did occur.

145Ms. McQueen testified that another employee, whose name she could not recall, had told her he or she had found Ms. Murchie under the table. Ms. McQueen said she did not know what happened, was not a medical professional, and was not aware of Ms. Murchie's medical condition at the time. Ms. McQueen later on became aware that Ms. Murchie has Crohn's Disease.

146This evidence is irrelevant, completely based on very weak hearsay, cannot be placed in time, cannot be confirmed, and has no nexus to this case.

Mr. Odd's Credibility

147Mr. Odd has some credibility problems as well. I do not accept his evidence that he did not intend to flick Ms. Murchie back on the breast. It does not accord with her repeated evidence that he mocked her when he said that she had been snapping her fingers in what he termed his "private area". It also does not correspond to his pattern of sexualized antics in the workplace, which he admitted, and included flicking his own nipples, lifting his shirt, and engaging in other sexualized antics with co-workers. He has admitted to these sexualized and other antics. I find that Mr. Odd intended to flick Ms. Murchie on the nipple, and did so.

148Throughout his testimony, Mr. Odd occasionally contradicted himself, although, for the most part, with the notable exception of whether he intended to touch Ms. Murchie in the way that he did, he was generally truthful.

149On another issue of credibility, Mr. Taylor challenged Mr. Odd for writing a very positive-sounding letter of resignation, dated May 22, 2002 (Exhibit 15), when in reality, it failed to include his two true reasons for leaving, one of which stemmed from this situation. Mr. Odd responded, "I try not to burn bridges when I leave somewhere". Mr. Taylor suggested that this was an indication that what he writes is "not wedded to reality". Mr. Camman objected, stating that it is a "quantum leap" to make this connection, submitting that it does not "make him a liar to not put poison in a letter, having tact is not a lie". Rather than continue along this line of questioning, I ruled at the time that it was not particularly relevant, but that I understood the point being made. I do not consider the content of Mr. Odd's resignation letter to be relevant in the context of assessing his credibility, and give it no weight.

Ruling on Browne v. Dunn Objection

150On another issue related to Mr. Odd's possible motivation in touching Ms. Murchie, Mr. Taylor asked Ms. McQueen if she recalled a female employee in the fall of 2001 named Erin, if she had failed to pass her three-month probation, and if she had been Mr. Odd's girlfriend. Mr. Camman objected, relying on the rule in Browne v. Dunn [(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.)], and noting that Mr. Taylor had not first put this potentially contradictory evidence to Mr. Odd prior to attempting to impeach his credibility.

151After hearing submissions from both counsel, I relied upon Professor Mullan's decision in Modi v. Paradise Fine Foods Ltd. (No. 1) (2005), 53 C.H.R.R. D/151, 2005 HRTO 19, and ruled that, while it did violate the rule in Browne v. Dunn, because it was not put to Mr. Odd first, nevertheless, that the question could be asked and that it would go to weight of that potentially contradictory testimony rather than admissibility.

152Ms. McQueen testified that she thought Erin was Mr. Odd's girlfriend, but that Ms. Murchie could only have had the authority to fire a server when filling in as an assistant manager, when the manager was not there, since she was normally a supervisor. None of this evidence was helpful in assessing Mr. Odd's credibility, since it did not establish that Ms. Murchie actually fired Erin, only that under certain circumstances that it would have been possible for her to do so. For this reason, I give it no weight whatsoever.

Ms. McQueen's Credibility

153Ms. McQueen was also generally truthful, but her evidence about whether or not any suspensions were handed out during the investigation was quite contradictory, and it seemed, deliberately evasive on this point. It was also troubling that she would not appear without being served with a summons.

Ms. Conyers' Credibility

154Ms. Conyers was inconsistent in her testimony in several respects. First, her testimony about whether or not suspensions were meted out was highly contradictory. When she finally admitted that suspensions had been handed out, after initially denying it, she tried to sugar-coat it as having been a "layman's term". The clear evidence given by both Ms. Murchie and Mr. Odd refutes her attempt to shade this issue. I find that they were both suspended.

155Secondly, she said that they had taken both Ms. Murchie and Mr. Odd's keys on Monday, but Mr. Odd returned to work on December 17^th, had his keys and knew that his suspension was over, even though Ms. Murchie's suspension was ongoing. Nevertheless, she testified, as set out in § 6[9], that, ". . . Stephanie would have been allowed to work if she wanted to and I can't explain why Stephanie feels she was suspended". This evidence contradicts her own evidence that she was worried that if she did not take Ms. Murchie's keys and pass-code, she would re-enter the restaurant to take the management log.

156Similarly, by Ms. Conyers' own admission, Mr. Odd knew of the outcome of the investigation several days before she advised Ms. Murchie. Mr. Odd was not at fault for this unequal treatment, management was.

157Because of the serious concerns I have with Ms. Conyers' credibility, I do not accept her evidence that Ms. Murchie demanded that management fire Mr. Odd.

Mr. McIntyre

158Mr. McIntyre's evidence as a witness was straightforward and consistent. I accept his corroborating testimony on behalf of Ms. Murchie about the effect of these events on her.

ANALYSIS

Did this single incident constitute sexual harassment?

159The Supreme Court of Canada defined sexual harassment as follows in Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at § 56 [10 C.H.R.R. D/6205 at § 44451]:

. . . 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 . . .

160The Code defines "harassment" under s. 10(1) as follows:

10(1) . . .

"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.

161While this incident was a single incident, it was a serious one, and I find that no employee should have to tolerate having a co-worker flick his or her nipple. It is of sufficient gravity that it creates a situation intolerable for a female employee, and meets the test of "known or ought reasonably to be known to be unwelcome". See: Watt v. Niagara (Regional Municipality) (1984), 1984 CanLII 5042 (ON HRT), 5 C.H.R.R. D/2453 (Ont. Bd.Inq.). In so finding, I rely upon the following description on the nature of harassment in Janzen, supra, at § 49 [C.H.R.R. § 44444, quoting Arjun P. Aggarwal, Sexual Harassment in the Workplace, 1987]:

. . . Harassment behaviour may manifest itself blatantly in forms such as leering, grabbing, and even sexual assault. More subtle forms of sexual harassment may include innuendos, and propositions for dates or sexual favours.

162The corporate respondent had a policy in place on sexual harassment at the time of this incident (Exhibit 34), albeit written in the United States, and I find that Mr. Odd's action violated this policy, which stated that sexual harassment "includes any unwelcomed comments, advances or physical contact of a sexual nature".

163The corporate respondent's policy on sexual harassment contemplated the likelihood of an investigation, where it said:

If you believe that you or any another [sic] employee is being subjected to discrimination/harassment, you should notify your Manager, unless he/she is the subject of the complaint or is involved in any way. If this is the case, you should contact their supervisor or the Owner so that they may have the opportunity to investigate and deal with the problem.

All reports, investigations and findings will be kept confidential and limited to individuals involved in resolving the situation.

164The corporate respondent did conduct an investigation into Ms. Murchie's allegation. However, as admitted by Ms. Conyers, "mistakes" were made.

Did the corporate respondent have a duty to investigate?

165Human rights jurisprudence has read the obligation to conduct an investigation into allegations of workplace discrimination into the Code, under s. 5. The following passage from Laskowska v. Marineland of Canada Ltd. (2005), 53 C.H.R.R. D/262, 2005 HRTO 30 at § 51—53, sets it out succinctly:

Subsection 5(1) of the Code provides that "Every person has a right to equal treatment with respect to employment without discrimination because of. . . sex". The Tribunal and the courts have included in that right, such things as the right to a discrimination-free environment, or a non-poisoned workplace, even though it does not explicitly state that in the concisely worded general anti-discrimination provision of s. 5(1). From that general workplace anti-discrimination clause flows other obligations, such as the "duty not to condone or further a discriminatory act that has already occurred" (see Payne) and the duty on an employer to investigate a complaint of discrimination.

I agree with Vice-Chair Laird's statement in Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19 (QL) [1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205] at § 234:

Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination in the workplace, and that a failure to do so will itself result in liability under the Code: Dhillon v. F.W. Woolworth Company (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743; Olarte v. DeFilippis and Commodore Business Machines Ltd. (1983), 1983 CanLII 4716 (ON HRT), 4 C.H.R.R. D/1705; Persaud v. Consumer's Distributing Ltd. (1990), 1990 CanLII 12507 (ON HRT), 14 C.H.R.R. D/23.

It would make the protection under s. 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a "means" by which the employer ensures that it is achieving the Code-mandated "ends" of operating in a discrimination-free environment and providing its employees with a safe work environment.

Was the corporate respondent's response reasonable?

166The corporate respondent was correct to conduct an investigation. However, it ought to have been more careful in its choice of investigator, and in the manner in which the investigation was conducted. I cite with approval a passage from How to Conduct a Workplace Human Rights Investigation,¹ at p. 56:

The Investigator's Background

It is very important that the investigator understand human rights legislation and the concept of harassment in particular. This will ensure that the investigation is conducted and the questions are asked in a manner that accords with statutory requirements. The investigator should also have experience and sensitivity in dealing with employees and employment issues.

The perception of neutrality and a lack of bias to both the complainant and the alleged harasser are key qualities the investigator must possess. Therefore, the person chosen should not be in a position of influence over these individuals, and should not make decisions regarding their compensation, discipline, demotion, opportunities for advancement, or any other terms or conditions of their employment.

Care should be taken to select an investigator to suit the situation. For example, if the complaint is one of sexual harassment and the allegations warrant it, the employer should consider having both a man and a woman conduct the investigation. This will ensure a gender-balanced investigation. Similarly, if the complaint involves harassment based on race or religion, having a person from a similar background, who can offer insight into the meaning of events and comments, conduct the investigation may be preferable.

167There are six elements to the "Wall" test used to assess the reasonableness of the employer's response, see: Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 at § 160 (Ont. Bd.Inq.), which are summarized as follows:

• There is an obligation of promptness in dealing with a harassment complaint.
• There is an awareness by the employer that sexual harassment is prohibited conduct.
• The issue must be dealt with seriously.
• The employer must demonstrate that there is a complaint mechanism in place.
• The employer has an obligation to provide a healthy work environment.
• There is an obligation for management to communicate its actions to a complainant.

168I find that the corporate respondent did deal with the matter promptly and did have awareness that sexual harassment is prohibited conduct. However, it is clear from the evidence that the sexual harassment policy in place was not followed, and that from an objective perspective, the manner in which the investigation took place was not reasonable, for the reasons set out below.

169There was no complaint mechanism in place that was functional, and the approach taken to Ms. Murchie's internal complaint was unsatisfactory. Although Mr. Odd had engaged in prior sexualized antics, they were not sufficiently serious to constitute a poisoned workplace for Ms. Murchie under s. 5(2) of the Code. While management did communicate its final determination to Ms. Murchie, it was improper that Mr. Odd was told of the outcome prior to Ms. Murchie, and that he was back at work when she was not, given that they had both been suspended while the investigation took place. The corporate respondent has failed to meet more than half of the criteria under the Wall test for reasonableness, contrary to s 5(1) of the Code.

Why the Investigation Was Flawed

170In this instance, neither Ms. McQueen nor Ms. Conyers had been given any prior human rights training. Moreover, each of them had a friendship with Ms. Murchie, and so neither of them was neutral. Ms. McQueen felt that she had been "bumped off" the investigation, but was nevertheless required to attend the meeting held on Tuesday with Ms. Conyers and Ms. Murchie, and also required to post Mr. Butkus's message. She was clearly unsure of her role, and it upset Ms. Murchie that her direct report had been removed from the file once she had made her internal complaint and the investigation had started. I agree with Mr. Taylor's submission that once Ms. McQueen began investigating the matter, it was improper to have removed her. However, she should never have been made an investigator from the outset.

171The confusion that resulted from this flawed investigation was rampant: Mr. Odd testified that he never felt that the investigation had ended. There was gossip in the workplace, which was attributed to Ms. Murchie by management, which added to the subtext of these issues. When management did not like Ms. Murchie's "demeanour", it seemed to change their outlook about their obligation to conduct a neutral investigation under the Code. Management met with Ms. Murchie in the dining area, which they admit was also a "mistake", although there is a dispute about who asked for that to be the venue. There seemed to be an ambivalence about responding to Ms. Murchie generally, which turned into hostility by Ms. Conyers by the time she wrote management's decision letter. I attribute some of these problems to the lack of experience that Ms. McQueen and Ms. Conyers had in human rights, and acknowledge the admission made that this was the corporate respondent's first such investigation. However, throughout the course of the investigation, it was clear that management was losing patience with Ms. Murchie, who was resented for asserting her rights under the Code.

172As a result of all of these factors, I find that the investigation was seriously flawed. The manner in which it was conducted itself constituted a breach of the Code under s. 5(1). This could have been avoided if the investigation had been conducted by the corporate respondent's Human Resources Department, by outside counsel, or some other neutral third party. I appreciate the evidence given by Ms. Conyers that in light of the "mistakes" made, management has since been given human rights training.

Did Reprisal Occur?

173The concept of reprisal is contained in s. 8 of the Code, which states:

Reprisals

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

174The intent to reprise may be inferred from the facts and is a matter of credibility, see: Jones v. Amway of Canada Ltd., [2002] O.J. No.1504 (QL) [CHRR Doc. 02-177] (Div.Ct.).

175There were several instances of reprisal which occurred in this case, all of which happened after management realized that Ms. Murchie had been speaking to a lawyer, and after she threatened to assert her legal rights either through the human rights system or at the Ontario Labour Relations Board. It is unequivocal that management knew as of Monday, December 16, 2001, that she had been speaking to a lawyer about this matter.

176It is settled law that when a respondent's treatment of a complainant is at least in part reprisal for contacting the Commission or threatening to do so, that s. 8 has been engaged. See: deSousa v. Gauthier (2002), 2002 CanLII 46506 (ON HRT), 43 C.H.R.R. D/128; Elkas v. Blush Stop Inc. (1994), 1994 CanLII 18421 (ON HRT), 25 C.H.R.R. D/158 (Ont. Bd.Inq.); and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213; aff'd on other grounds (1998), 108 O.A.C. 81 [ 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433] (Div.Ct.); and rev'd on other grounds (2000), 2000 CanLII 16800 (ON CA), 189 D.L.R. (4th) 14 [ 37 C.H.R.R. D/481] (C.A.).

177First, Ms. Murchie's keys and pass-code were taken from her, in part, because Ms. Conyers was suspicious that Ms. Murchie would take the management logs without permission. Ms. Conyers did not like Ms. Murchie's "demeanour". Because Mr. Odd was visibly upset, he was not under the same cloud of suspicion, during the investigation.

178Second, Mr. Odd was notified of the outcome of the investigation days prior to Ms. Murchie and permitted to return to work, while Ms. Murchie was languishing at home. The investigation failed to be equitable, even in these most basic respects.

179Third, management's decision letter to Ms. Murchie was dated Friday, December 21, 2001, and she picked it up from her mail-slot at work after she received Ms. Conyers' call of the same day, advising her of their decision. In Ms. Murchie's viva voce evidence about this conversation, she said that Ms. Conyers told her that both she and Mr. Odd were expected to return to work on their next scheduled shifts. Ms. Conyers' letter of December 21, 2001. states that, ". . . he will be returning to work immediately".

180Whichever version is correct is irrelevant, because I accept the evidence of Ms. McQueen that Mr. Odd had been back at work since the evening of Monday, December 17, 2001, at the direction of Ms. Conyers. Ms. Murchie was not present that evening, even though she had been scheduled to commence work at 5:00 p.m.

181When Ms. Murchie was asked to hand in her keys and advised of the change in the pass-code at the Tuesday, December 18, 2001, meeting, as part of the suspension of both herself and Mr. Odd while the investigation was ongoing, she, in fact, was the only one suspended for the week. Mr. Odd only missed about a day's work. Thus, serious reprisal within the meaning of s. 8 began at this time, because it occurred at the December 18, 2001, meeting, immediately after Ms. Murchie asked for the management logs and other documentation.

182Fourth, management's decision letter had an accusatory and diminishing tone, which is another form of reprisal to Ms. Murchie for asserting her right to be free from discrimination in the workplace. The Tribunal is reminded of Marshall McLuhan's famous quotation, "the medium is the message". The message in this letter was that she was at fault, "this whole situation was started by you when you were trying to get Nic's attention in the kitchen", and that it was time that she went back to work and stopped complaining because her rights had been violated.

183Fifth, the memorandum posted on the staff bulletin board was also another incident of reprisal, within the meaning of s. 8 of the Code. It violated the corporate respondent's sexual harassment policy in terms of confidentiality; it was contrary to management's instructions to her not to discuss it with anyone; it named Ms. Murchie by name but not Mr. Odd (not that it should ever have been posted); and it made an example out of her to all of the staff for asserting her legal rights. I accept that objectively, no one could have reasonably expected her to return to her employment in such circumstances.

184The Tribunal accepts the evidence that the errors in her final pay were honest mistakes, since they were corrected contemporaneously.

REMEDY

185Mr. Taylor provided detailed submissions about the requested remedy, which included a request for general damages, special damages, and pre- and post-judgment interest. Although it was claimed in the Commission's pleading, during the hearing, Mr. Taylor advised that no claim was made for mental anguish, and thus, none is being awarded. These awards are set out below.

Liability

186Mr. Odd's discriminatory act was the deliberate touching of Ms. Murchie's breast.

187The discriminatory acts committed by Ms. McQueen and Ms. Conyers took place in their role as investigators, who conducted an unreasonable investigation that condoned discrimination, and caused further incidents of discrimination to occur. Since they conducted the investigation at the direction of the corporate respondent, their acts are deemed to be the acts of the corporate respondent, pursuant to s. 45(1) of the Code.

General Damages

188The facts of this case have been weighed against earlier decisions of the Board of Inquiry and the Tribunal concerning situations of multiple Code violations that flow from sex discrimination, sexual harassment in the workplace and reprisal. While the initial breach of the Code was relatively minor, the breaches flowing from the shortcomings of the investigation are serious, and resulted in Ms. Murchie suffering from additional discriminatory acts including reprisal, which culminated in her being unable to return to the workplace.

189In making this award, consideration has been given to Ms. Murchie's loss of dignity, and the seriousness, frequency and duration of these infringements.

190After careful consideration of the facts of this case, the Tribunal finds that $16,000 for general damages is appropriate.

Special Damages

191Since the seriously flawed investigation made it untenable for Ms. Murchie to return, it is appropriate to award special damages for loss of income in this matter, in accordance with s. 41(1)(b) of the Code.

192The evidence demonstrates that Ms. Murchie received her last pay from the corporate respondent on January 21, 2002. She was on Employment Insurance ("EI") from then until March 25, 2002, when she started a new job, and testified that she actively sought other employment during this period. Since March 31, 2004, she has been home with her children.

193I find that Ms. Murchie was unemployed for a period of nine weeks, and that she earned $12 per hour. Her hours fluctuated according to the bi-weekly hours summary (Exhibits 20—33). Her scheduling is further complicated by the fact that she worked in two locations. The Tribunal finds that $4,329 compensates her for her loss of income.

Pre- and Post-Judgment Interest

194The Commission has sought pre-judgment interest, in accordance with s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Since her complaint is dated August 9, 2002, pre-judgment interest is awarded at 2.5 percent per annum, from August 12, 2002, to allow time for service.

195The Commission has also sought post-judgment interest, in accordance with s. 127 of the Courts of Justice Act, supra. It is hereby awarded from thirty days after the date of this order, at 6 percent per annum.

Public Interest Remedies

196In the Commission's pleading, at para. 5, it sought an order that the corporate respondent retain a qualified consultant to provide it with anti-discrimination training.

197The Tribunal is satisfied with the evidence provided by Ms. Conyers that since these events occurred, the corporate respondent has updated its policy and provided management with human rights training. No additional measures are required.

ORDER

198Having found the respondents infringed Ms. Murchie's right to be free from discrimination for the reasons set out herein, in accordance with s. 45(1) of the Code, the following order is made:

(1) Mr. Odd shall pay $1,000 in general damages to Ms. Murchie.

(2) The corporate respondent shall pay $15,000 in general damages to Ms. Murchie.

(3) The corporate respondent shall pay $4,329 as compensation for loss of earnings to Ms. Murchie.

(4) In accordance with s. 127 of the Courts of Justice Act, supra, pre- and post-judgment interest are granted. Pre-judgment interest shall commence on August 12, 2002, fixed at 2.5 percent per annum. Post-judgment interest, fixed at 6 percent per annum, shall commence thirty days from the date of this Order.

199I will remain seized of this matter for a period of twelve months from the date of this Order, so that I may deal with any implementation issues that may arise.

NOTE

¹ J. Knight, M. MacKillop & K. Taylor, Toronto: Carswell, 2004.