Cugliari v. Telefficiency Corp. (No. 2)

BI-388-01

2006-04-13

2006 HRTO 7

Ontario Human Rights Tribunal

CHRR Doc. 06-227

Maria Cugliari Complainant

and

Ontario Human Rights Commission Commission

v.

Bill Clubine, Michael Brunet and Telefficiency Corporation Respondents

Date of Decision: April 13, 2006

Before: Human Rights Tribunal of Ontario, Steven J. Faughnan (Adjudicator)

File No.: BI-388-01

Appearances by:

Prabhu Rajan, Counsel for the Commission

Maria Cugliari, on her own behalf

Mark Hart, Counsel for the Complainant

Bill Clubine and Michael Brunet, on their own behalf

SEXUAL HARASSMENT — sexual advances by employer, person in authority, supervisor — employer's obligation to provide workplace free from harassment — definition of sexual harassment and unwelcome — INTERPRETATION OF STATUTES — definition of "harassment"

EVIDENCE — expert evidence — hearsay — credibility — HUMAN RIGHTS COMMISSIONS — adequacy of investigation of complaint — DAMAGES — damages assessed for sexual harassment and wilful or reckless discrimination — general damages — injury to dignity and self-respect

Summary: The Human Rights Tribunal of Ontario ruled that Bill Clubine discriminated against Maria Cugliari because of her sex, as well as sexually harassing her and making a sexual solicitation.

Maria Cugliari worked for Telefficiency Corporation, which sold and installed telecommunications systems. She worked from December 1993 to April 1994 when she voluntarily left her position. She worked for the company again in 1998 for a period of about seven weeks until she was dismissed.

The Tribunal accepted Ms. Cugliari's evidence that during her second period of employment she was sexually harassed by Bill Clubine, who was the Chief Financial Officer for the corporation and one of the main shareholders.

Mr. Clubine invited Ms. Cugliari out for drinks, talked about his sexual experience, boasted about the size of his penis, asked her to sleep with him, kissed her and touched her sexually. Ms. Cugliari was very upset by this encounter with Mr. Clubine, although she told him the following day that she would be discreet and not mention that it had ever happened. On the same day she was dismissed, just as her probationary period was coming to an end.

The Tribunal found that the sexual harassment and the dismissal were not connected although the culminating incident of sexual harassment and the dismissal followed each other so closely in time. The decision to dismiss Ms. Cugliari was taken by other officers of the company, who knew nothing about the sexual harassment. They decided Ms. Cugliari should be dismissed because of what they understood to be an inadequate sales record, and in order to show other sales employees the consequences of poor sales. The fact that her record was not very different from other employees did not persuade the Tribunal that discrimination was involved.

The Tribunal declined to award Ms. Cugliari compensation for lost wages. However, it awarded her general damages and damages for mental anguish in the amount of $17,500 with interest.

See also (No. 1) (2001), CHRR Doc. 01-184 (Ont. Bd.Inq.).

CASES CITED

Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.): 217

Bannister v. General Motors of Canada Ltd. (1998), 1998 CanLII 7151 (ON CA), 40 O.R. (3d) 577 (C.A.): 226

Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.): 23

Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd.Inq.): 219

Bui v. B & G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd.Inq.): 12

Cugliari v. Telefficiency Corp. (No. 1) (2001), CHRR Doc. 01-184 (Ont. Bd.Inq.): 3

Curling v. Torimiro (No. 2) (1999), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468 (Ont. Bd.Inq.): 182

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 25

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 1) (1995), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468 (Ont. Div.Ct.): 11

Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd.Inq.): 263

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 215

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 221

Kalbfleisch v. Carillo (2002), 2002 CanLII 46513 (ON HRT), 44 C.H.R.R. D/163 (Ont. Bd.Inq.): 217

Lang v. Ontario (Ministry of Community and Social Services) (No. 2) (2003), 46 C.H.R.R. D/102, 2003 HRTO 7: 6

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 141

Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd.Inq.): 217

R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531: 28

R. v. Starr, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449, 2000 SCC 40: 28

Rubio v. A Voz-Portuguese Canadian Newspaper Ltd. (1997), CHRR Doc. 97-245 (Ont. Bd.Inq.): 15, 227

Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 265

Smith v. Mardana Ltd. (No. 2) (2005), 2005 CanLII 2811 (ON SCDC), 52 C.H.R.R. D/89 (Ont. Div.Ct.): 23

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O 1990, c. C.43, s. 127: 266

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

s. 5(1): 1, 19, 210, 225, 244, 262, 267

s. 7(2): 1, 19, 211, 225, 244, 262, 267

s. 7(3): 1, 212, 225

s. 7(3)(a): 19, 245, 262, 267

s. 7(3)(b): 261

s. 9: 213, 267

s. 10(1): 214

s. 41(1): 258

s. 41(1)(b): 264

s. 41(4): 6

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15: 29

AUTHORITIES CITED

Sopinka, John, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999): 27

INTRODUCTION

1In her complaint dated May 27, 1998 (the "complaint"), the complainant states that she was sexually harassed and subject to reprisal for refusing sexual advances contrary to ss. 7(2) and 7(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") and discriminated against because of sex in employment contrary to s. 5(1). The complainant alleges that while a probationary employee during a second period of employment at Telefficiency Corporation ("Telefficiency") she was subject to sexual solicitation and sexual harassment by Bill Clubine, the Chief Financial Officer of Telefficency, and then dismissed from her employment because she refused his advances. She alleges that Michael Brunet, the Chief Executive Officer of Telefficiency, was responsible for, or had a role in the dismissal, which was tainted by discrimination.

Telefficiency in Receivorship

2By a court order dated June 27, 2001, a receiver and manager was appointed over the assets of Telefficiency. Although having notice of these proceedings, the receiver chose not to participate. No remedy was sought against Telefficiency.

Adding Mr. Brunet as a Personal Respondent

3The complaint was initially referred against Mr. Clubine and Telefficiency, only. For the reasons set out in my ruling in Cugliari v. Telefficiency Corp. (2001), CHRR Doc. 01-184 (Ont. Bd.Inq.), I made an order adding Michael Brunet as a personal respondent.

Respondents not Represented by Counsel

4While the complainant (until November 17, 2003) and the Commission were represented by counsel, both Mr. Clubine and Mr. Brunet (the respondents) appeared on their own behalf without the assistance of counsel. No one appeared for the corporate respondent.

5Because the respondents represented themselves, they were faced with many challenges, and I gave them latitude to present their defence.

Reserving the Right to Claim Costs in Another Forum

6For the reasons set out at § 55 in Lang v. Ontario (Ministry of Community and Social Services) (No. 2) (2003), 2003 HRTO 7, 46 C.H.R.R. D/102 (H.R.T.O.), I held that legal costs of a proceeding before me are only available in the circumstances set out in s. 41(4) of the Code. In his opening submissions, Mr. Hart stated that he was not pursuing in this proceeding any right that his client might have to costs, but reserved any right his client might have in another forum to make a claim for her costs of this proceeding.

The Complainant's Adjournment Request

7The hearing schedule was set to accommodate the schedules of the respondents, and the matter was heard intermittently. Mr. Clubine still arrived late on a number of occasions, even though his somewhat inflexible schedule was given great consideration when setting hearing dates. In addition, in the midst of Dr. Welsh giving her evidence, the complainant requested an adjournment for an approximately six-month period. The Commission supported the request. As set out in the materials filed by Mr. Hart in support of the adjournment, the complainant was apparently re-traumatized as a result of relating the circumstances of her complaint as she testified. In materials filed in response, Mr. Clubine opposed the adjournment, stating that it would be unfair to allow it. He also asked that the complaint be dismissed.

8By order dated November 5, 2002, I granted the adjournment to January 27, 2003, on certain terms and ruled that Mr. Clubine failed to establish sufficient grounds for a dismissal. On January 27, 2003, Mr. Hart advised that the complainant was able to proceed and arrangements were made to set further hearing dates.

Mr. Hart Unable to Continue Representing the Complainant

9In the midst of Mr. Brunet's examination in chief, for the reasons he set out in a letter dated November 6, 2003, Mr. Hart advised that he could no longer continue to act for the complainant. On November 17, 2003, after receiving assurances that the complainant was content to proceed without Mr. Hart, and Commission counsel advising that her interests would be advanced by the Commission without any delay, I allowed his withdrawal and the matter continued in the absence of Mr. Hart.

The Commission's Investigation and the Death of a Potential Witness

10During the hearing, concerns were expressed by the respondents about the timing and conduct of the Commission's investigation. The respondents believed that it was one-sided and inadequate. Mr. Brunet also pointed out that, before the complaint was referred to the Tribunal, Shirley Hale-Sanders, a person who had performed Human Resources functions at Telefficiency, had died. Ms. Hale-Saunders prepared the complainant's termination documentation, attended at the meeting with Mr. Tait when the complainant was dismissed and helped the complainant to collect her things when she left. Although she was involved in the processing of the complainant's dismissal and was present when the complainant was dismissed, there was no evidence led that Ms. Hale-Saunders participated in any termination decisions, or discussions, or that she had observed any interaction between the complainant and Mr. Clubine, and could have shed any light on those issues.

11In Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 1) (1995), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468, complaints about the insufficiency, timing and conduct of an investigation are addressed. At § 12 of that decision, the Ontario Divisional Court stated that:

Even if there was a poor or biased investigation and notwithstanding the extremely lengthy period upon which the complaints are based, if there was evidence upon which the Commission could recommend the appointment of a Board the Commission had such authority. The Board conducts a full hearing and it is the evidence before the Board that governs, not the investigator's report to the Commission. The Board correctly decided that even if the investigation was not impartial, that it did not affect the Board's de novo hearing.

12I emphasized in Bui v. B & G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd.Inq.) (" Bui"), that what steps the Commission took in its investigation, so long as it did not amount to an abuse of the Tribunal's process, is for the Divisional Court to examine, not the Tribunal. I heard and considered the concerns of the respondents, but was not satisfied that the conduct of the Commission, or the death of Shirley Hale-Sanders, amounted to an abuse of the Tribunal's process, or entitled the respondents to any other relief.

Calling Commission Counsel as a Witness

13In the course of the hearing Mr. Brunet indicated that he wished to call Mr. Rajan as a witness for the respondent's case. Mr. Rajan strenuously objected. As Mr. Rajan had not waived solicitor-client privilege with respect to what he learned about this matter while acting in his role as counsel for the Commission, and I was not satisfied that any grounds, whether exceptional or otherwise, were established that were sufficient to displace that privilege for any reason, I advised that I would not be allowing Mr. Rajan to be called as a witness by the respondents. I did state, however, that in circumstances where a party wishes to challenge an aspect of an investigation or elicit some evidence about the Commission's processes, an investigating officer or other Commission employee is sometimes called. As it turned out the Commission called the investigating officer for this matter as a witness in reply and she was subjected to a full cross-examination on a variety of topics.

Eliciting Character Evidence

14At one point during the hearing Mr. Clubine advised that he wished to call as a witness an individual who acted as his personal assistant at Telefficiency. This witness was not being called to give direct evidence on the facts in dispute, but rather Mr. Clubine sought to adduce evidence from this witness that he had not made sexual advances to her or other females, to her knowledge, during the time they worked together. Mr. Rajan and Mr. Hart objected to this witness being called for the sole purpose of eliciting this evidence. At that stage in the hearing there was no evidence of any kind, whether similar fact or otherwise, that Mr. Clubine is alleged to have engaged in similar behaviour with any other female employee at Telefficiency. He flatly denied any solicitation, harassing behaviour or physical contact with the complainant.

15In Rubio v. A Voz-Portuguese Canadian Newspaper Ltd. (1997), CHRR Doc. 97-245 (Ont. Bd.Inq.), Vice-Chair McKellar was faced with a similar situation. She held that in the circumstances before her, evidence with respect to the good character of the respondent in that case was irrelevant.

16For the purposes of adjudicating this matter, I accept that Mr. Clubine did not engage in any improper conduct with a woman that reported to him nor is known by his assistant to have engaged in similar conduct with other women. I also accept the evidence of Mr. Kostaki Stamatakos, a bartender at a restaurant called Centro's, that he also never observed Mr. Clubine acting in an inappropriate manner while at the restaurant. I also accept the evidence of Mr. Brunet that he never saw Mr. Clubine acting in an inappropriate manner while at outings, restaurants or on business trips. This, however, does not therefore mean that the alleged conduct did not occur in this case. The complainant may have been an exception. In my opinion, therefore, while Mr. Clubine was free to call his assistant as a witness to provide evidence on other relevant matters, including interactions involving the complainant, the evidence that Mr. Clubine sought to elicit from his personal assistant on how he interacted with her or her knowledge of his interaction with other women had little or no probative value. This type of evidence which went solely to his character was not therefore of assistance to me. I ruled that it could not be elicited. Mr. Clubine was permitted, however, to call this witness to provide any other relevant evidence he wished to lead. He decided not to call her.

Raising Settlement Proposals at the Hearing

17There was a mediation that occurred after the matter was referred for a hearing, but no resolution was achieved.

18During the cross-examination of Mr. Clubine, an issue arose as to the admissibility of a portion of [a] demand letter from Mr. Hart to Telefficiency dated April 20, 1998. It was marked without prejudice and a portion of the letter indicated what the complainant might accept to resolve the matter. Although that portion did not strictly qualify as covered by settlement privilege, erring on the side of caution, and taking the occasion to remind all present that discussion of settlement proposals or positions should not be shared with me, I allowed the letter to be introduced with the portion containing the proposal excised. As this issue was being addressed, Mr. Clubine took it upon himself to blurt out some information that more likely than not would have been covered by mediation privilege and should not have been shared with me. I advised Mr. Clubine that this was inappropriate. Discussion then ensued as to whether I should disqualify myself. After hearing submissions on the issue, I advised the parties that I was not satisfied there were sufficient grounds to disqualify myself. I assured them that I would disabuse myself of any information that Mr. Clubine conveyed.

DECISION

19Mr. Clubine infringed the rights of the complainant under ss. 5(1), 7(2) and 7(3)(a) of the Code. The remedy for the infringement is set out in the order provisions in this decision. The claim against Mr. Brunet fails.

THE WITNESSES

20In addition to the complainant, four other witnesses were called by the complainant and the Commission to give viva voce evidence. Two witnesses were called to add to the narrative and rebut the allegation that the complainant had fabricated the events at issue. The first was Luigi Maestro, a long-time friend of the complainant whom she testified she called on the night of April 2, 1998, to recount what had occurred that evening. The other was Fauzi Zamir, an individual who worked with the complainant at an earlier job, who acted as a "mentor of sorts" to her, and from whom the complainant sought counsel regarding the events at Telefficiency, and how best to deal with Mr. Clubine. The third witness was Valerie Pollack, the Commission Investigator who investigated the allegations, who was called to give evidence on some of the interviews she conducted during the course of her investigation.

21The fourth witness was Dr. Sandy Welsh. Dr. Welsh was called by the complainant to provide expert opinion evidence.

22In addition to Mr. Brunet and Mr. Clubine, two other witnesses gave viva voce evidence for the respondents. Mr. John Tait, the complainant's sales manager gave evidence with respect to his involvement in her hiring, supervision and dismissal. Mr. Kostaki Stamatakos, a bartender at a restaurant called Centro's was called to testify with respect to Mr. Clubine's general practices at the restaurant and with respect to the events that occurred on the evening of April 2, 1998. As discussed in more detail below, among those notably absent as witnesses were Mr. Robert Spizziri, a sales person who worked at Telefficiency at the same times as the complainant and had some personal involvement with her. The other was Mr. Don Demelis, the General Sales Manager at Telefficiency, to whom Mr. Tait reported.

CIRCUMSTANTIAL EVIDENCE, CREDIBILITY AND INFERENCES

23Discrimination is rarely displayed overtly and rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. The evidence in discrimination cases is often circumstantial (see for example, Basi v. Canadian National Railway Co. (No. 1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.)) and, as emphasized recently in the decision of the Ontario Divisional Court in Smith v. Mardana Ltd. (No. 2) (2005), CHRR Doc. 05-094 [reported 2005 CanLII 2811 (ON SCDC), 52 C.H.R.R. D/89], intent or motive to discriminate is not a necessary element of discrimination.

24In addition, the credibility of the witnesses that appeared or, alternatively, the inferences that may be drawn when a witness fails to testify are also a consideration in many complaints of discrimination, including this one.

25In determining issues of credibility, I am guided by the following test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356—57 (B.C.C.A.):

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility . . .

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 the truth of the story of the 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 . . . Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

26The factors set out in that decision and the following non-exhaustive list of factors have informed my determinations on the credibility of witnesses in this case: their motives, their relationship to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses' evidence and my observations of the manner in which the witnesses gave their evidence.

27With respect to the type of inference that may be drawn when a witness fails to testify, the following excerpt at p. 297, para. 6.321, in J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), is helpful:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it. [Citations omitted.]

HEARSAY

28R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 established that an out-of-court statement could be elicited as evidence for the truth of its contents provided that it was both necessary and reliable. R. v. Starr, (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) ("Starr"), is a case that recognized the continued existence of the traditional hearsay exceptions. After setting out various articulations of the hearsay rule, Iacobucci J, writing for a majority of the Supreme Court of Canada, explained at p. 516 of the Starr decision:

These articulations of the hearsay rule make clear that hearsay evidence is defined not by the nature of the evidence per se, but by the use to which the evidence is sought to be put: namely, to prove that what is asserted is true. When the out-of-court statement is offered for its truth, the inability to cross-examine or "test" the source of the evidence in court under oath or solemn affirmation as to the truth of the assertion undermines its reliability . . .

In short, the essential defining features of hearsay are the purpose for which the evidence is adduced and the absence of a meaningful opportunity to cross-examine the declarant in court under oath or solemn affirmation as to the truth of its contents.

29There is an exception for the admission of hearsay evidence in proceedings before the Tribunal. Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") allows its admission in these proceedings. However, as set out in many decisions of the Tribunal and its predecessor, the Board of Inquiry, the weight to be assigned to the evidence depends on the circumstances, and whether that evidence is the sole foundation to establish a prima facie case. Coupled with that is a consideration of how s. 15 of the SPPA interacts with the drawing of inferences when a key witness fails to testify. In my view, in order to rationalize the fact-finding process, in the face of an adverse inference when a key witness fails to testify, I would place little or no weight on an out-of-court statement by that witness offered for its truth.

30As mentioned above, in this proceeding there were, in my view, three key witnesses who did not testify. The first was Robert Spizziri, who could have shed light on what transpired during the period of time that Telefficiency was considering rehiring the complainant, and how it came to be that the complainant attended at Centro's restaurant on the night of April 2, 1998.

31The second key witness that did not testify was Mr. Demelis, the general sales manager for Telefficiency. This witness could have shed light on any concerns he had about the complainant's performance when she was rehired, and most importantly, how and when a decision was made to dismiss her. I do not share the view of Mr. Brunet that Valerie Pollack testifying about the answers Mr. Demelis gave during the investigation, relieved the need to have Mr. Demelis testify in person. The evidence of Mr. Demelis that was sought to be elicited through the introduction of documents or the viva voce evidence of Ms. Pollack, if attempted to be introduced for the truth of their contents, are vulnerable to being characterized as hearsay and determined to be inadmissible.

32Finally, in my view, the third key witness that was not called was the car jockey who parked cars at Centro. This witness could have provided support for Mr. Clubine's version of what occurred after he and the complainant exited Centro's on the evening of April 2, 1998, and the type of vehicle that Mr. Clubine was driving that night.

ALLEGATIONS OF WITNESS TAMPERING

33There were a number of occasions during the hearing when concerns were raised about the interaction between and influence exercised by Mr. Brunet and Mr. Clubine over the witnesses they had called.

34During the cross-examination of John Tait, the Commission elicited evidence with respect to the materials that Mr. Tait reviewed on the weekend before he testified, in preparation for giving his evidence. The Commission also queried Mr. Tait on the substance of a conversation he had with Mr. Brunet on the day that he appeared to give his evidence. The Commission was concerned that Mr. Tait tailored his evidence after he had received a "transcript" of what took place on previous days of testimony.

35I believe that much of the Commission's concerns arose as a result of the lack of clarity in Mr. Brunet and Mr. Tait explaining what was actually reviewed. In my opinion, what Mr. Tait reviewed, were witness statements rather than transcripts of evidence.

36With respect to discussions between Mr. Brunet and Mr. Tait about the circumstances of this case, I am satisfied that some discussion took place between Mr. Brunet and Mr. Tait in or about 2001 regarding the circumstances of the complainant's dismissal. In addition to the witness statements that Mr. Brunet provided to Mr. Tait before he gave his evidence, which included his own willsay, I am also satisfied that on the day of the hearing, Mr. Brunet explained the hearing process to him.

37I also accept that both Mr. Demelis and Mr. Brunet had a hand in securing employment for Mr. Tait after he left Telefficiency in 1999 as a result of his frustration over the financial inability of the company to secure equipment for installations.

38In considering and weighing Mr. Tait's testimony I considered these factors. I do not believe that what Mr. Brunet did was to attempt to alter this witnesses' testimony in any way, nor did any such alteration of his evidence occur. I found Mr. Tait to be an honest and credible witness who gave his best efforts to give a fair account of the events as they transpired, based on his memory of the events, not what he had read. He made admissions against his and the respondents' interests, and except for a limited number of variations, his version of what transpired at the meetings and discussions that he had with the complainant and his observations of her work, including what took place at the termination meeting, coincided with her evidence.

39What occurred with Mr. Kostaki Stamatakos caused me concern. In order to accommodate the witnesses' schedule, it was agreed to interrupt the cross-examination of Mr. Clubine to allow Mr. Stamatakos to give his evidence. Before Mr. Stamatakos was to testify, I cautioned Mr. Clubine that as he was in the midst of cross-examination, he was not to discuss his evidence with anyone. After a break in the hearing had ended and just as Mr. Stamatakos was to take the stand, Mr. Hart advised that he had overheard Mr. Clubine and Mr. Brunet speaking to Mr. Stamatakos about some of the controversial facts in issue in this matter, notably whether Mr. Clubine ordered drinks for the complainant that evening, and how Mr. Stamatakos would know how much liquor was poured into a glass. Mr. Clubine stated that Mr. Hart heard portions of a conversation which were taken out of context, being related to an impaired driving hearing where Mr. Stamatakos was a witness.

40As Mr. Clubine and Mr. Brunet were unrepresented, I ascribed the interaction that they had with Mr. Stamatakos to their unfamiliarity with the hearing process. I reminded everyone that there was to be no discussion of the evidence that Mr. Clubine gave on cross-examination while Mr. Stamatakos testified. I also ensured that there was no repetition by remaining in the hearing room during subsequent breaks. I also kept this interaction in mind as I weighed Mr. Stamatakos's evidence.

THE HISTORY OF TELEFFICIENCY

41Telefficiency was in the business of selling and installing telecommunication systems. Telefficiency was formed in 1992 out of two companies each separately owned by Mr. Clubine and Mr. Brunet. At Telefficiency, Mr. Clubine was the Chief Financial Officer primarily responsible for pursuing lines of financing. Mr. Brunet was the Chief Executive Officer. His responsibilities centred on the day-to-day operations of the company and ensuring sales. In April 1998, Teleficiency had approximately forty-five employees and Mr. Brunet and Mr. Clubine were the two main shareholders, the signing officers and directing minds of the company.

42Telefficiency ran into serious financial difficulty in or about the spring of 2001. Ultimately, by a court order dated June 27, 2001, a receiver and manager was appointed over the company's assets.

THE COMPLAINANT'S EMPLOYMENT AT TELEFFICIENCY

43The complainant worked at Telefficiency on two occasions as a sales representative. The first time she worked at the company was from December 1993 until April 1994, when she voluntarily left her position. The second began in 1998 and ended some seven and a half weeks later. This time she did not leave voluntarily. For the most part, it is the circumstances that she alleges occurred during the second period of employment that gave rise to the complaint.

The First Period of Employment — December 1993 to April 1994

44The complainant met Mr. Clubine the first time she worked for the company. Although Mr. Clubine does not remember the details of her working there during that time, the complainant testified that he would visit the sales area more often than others said he had done before, and would engage in conversations with her at her desk.

45She testified that on one occasion during this period of employment, Mr. Clubine volunteered to drive her to a sales call. Ms. Cugliari understood from other sales representatives that this offer of a ride was unusual.

46In his evidence, Mr. Clubine confirmed that he and the complainant had some interaction during the first time she worked at Telefficiency, and that he drove her to a sales call. He offered that it was not unusual for him to drive a non-management employee to an installation site.

47The complainant also testified that at the end of a lunch they had together Mr. Clubine said, "Let's try to use a little more sex to sell a lot more telephones". She characterized this as a comment of a sexual nature that disturbed her. In fact, it would appear it disturbed her so much that before she went to work for Telefficiency the second time, she asked Robert Spizziri, who was then working at the company, whether she should be concerned about it.

48For his part, Mr. Clubine did not recall having lunch with the complainant, or ever being alone with her in a restaurant. He stated that if such a private lunch took place he "would think he would remember".

49The complainant was not happy working at Telefficiency and ultimately decided to leave. She explained that she was working for a sales manager who was "not interested in mentoring or the performance progress of his sales team". After her sales territory was changed, her request to be changed to a different sales manager was not granted, and her base salary was eliminated, she felt that the work was too unstable and gave notice. She says that another manager asked what the company could do to have her stay, but she left. There was no evidence that any concern was raised about her employment performance during this first period of employment at the company, or that her interaction with Mr. Clubine was one of the reasons she left Telefficiency the first time.

50In fact, prior to her deciding to leave, she discussed her concerns with Mr. Clubine whom [sic], she testified says, gave her some valuable employment advice. She testified he said she needed to exercise more patience and to think of a time in her life when she didn't do that and the outcome was negative. He said that he knew she wanted to "get moving" but that she had to be "a little more patient". The complainant found that advice helpful and she testified that she thought that Mr. Clubine had insight from which she could benefit.

The Second Period of Employment — February 10 to April 3, 1998

51In 1998 the complainant wrote a letter to Mr. Clubine, hoping that it might lead to employment again at Telefficiency. She testified that he was a logical person to approach because of her previous interaction with him and his position at the company. In the letter she re-introduced herself and thanked him for the employment advice that he gave her the first time she worked at the company. She says she followed up the letter by telephone.

52Mr. Clubine testified he could not recall giving her advice in 1994, but when she did get in touch with him personally by telephone, that he thanked her for the letter. She testified that after some discussion he quickly said, "You want a job don't you?" She testified that she felt this was "abrupt".

53When she said that she did, Mr. Clubine asked her to contact Don Demelis, the General Sales Manager at Telefficiency, and to tell him that Mr. Clubine referred her. Mr. Clubine may have also left a message for Mr. Demelis that the complainant had been in contact with him and was looking for a job. The complainant then got in contact with Mr. Demelis and a series of interviews was scheduled. Mr. Clubine testified that passing on her name to Mr. Demelis was the full extent of his involvement in her getting a job the second time at Telefficiency. No direct evidence was tendered to show otherwise.

54The first interview she had was with Mr. Demelis. As General Sales Manager at Telefficiency all the sales managers reported to him. The sales managers, in turn, were in charge of their sales team made up of a number of sales representatives. Mr. Demelis reported to Mr. Brunet, who had the responsibility for sales in the company.

55After her interview with Mr. Demelis, she met with John Tait, who was to become her sales manager. She then had a final meeting with Mr. Demelis when an offer of employment was presented and accepted on January 28, 1998. Her start date was to be February 10, 1998. She testified that during her interviews she said she was aware of a prospective deal with a car dealership that she could bring to the company.

56During the hearing, although he did not appear as a witness, there was some evidence elicited about statements made by Mr. Spizziri regarding the complainant while she was being considered for re-employment at Telefficiency.

57When he was asked on cross-examination if there was a concern with hiring the complainant, Mr. Tait replied that he remembered Mr. Spizziri alluding to it not being a good idea to hire her. He did not remember the use of strong language or there having been a relationship between the complainant and Mr. Spizziri.

58Mr. Brunet testified that at a manager's meeting before she was hired Mr. Spizziri mentioned that he knew her and that she had problems with people in the past. Mr. Brunet testified that Mr. Spizziri said she was a "lunatic". He said that Mr. Spizziri further explained that it had to do with the complainant's reaction after they slept together. He testified that he said he did not want to hear anymore as he was not interested. Mr. Brunet said this slowed the approach and caused them to be more careful, but that he left it to Mr. Demelis to investigate further, as in his view it was a private matter. He said that the decision at the time was either to hire or not to hire. In his view she knew the products and she could be given a chance. He said he did not object to her hiring and left the decision up to Mr. Demelis. However, Mr. Brunet did admit that Mr. Spizziri's comments caused him to be more careful after she was hired.

59As Mr. Spizziri did not testify and the decision not to call him turned, in my view, on an assessment of the relevance of his testimony by Mr. Brunet, rather than some difficulty in locating him, I place no weight on this evidence for the truth of its contents. In my view, however, this evidence may fall under an exception to the rule against hearsay, because it is admissible not for the truth of its contents, but simply that a statement was made, causing some caution in her hire and her supervision. I will admit it only on that basis.

The Offer of Employment

60The offer of employment was a one-page letter dated January 26, 1998. It provided for a base salary of $24,000 a year, plus commissions and bonuses. The letter set out the following:

The first 3 months of employment are on a probationary basis. After 3 months your performance will be reviewed to establish your position on the salary grid. Failure to maintain quota could result in loss of position.

A copy of the compensation program including quotas, prospecting targets and confidentiality agreement are attached for your review and signature.

61Although discussed in the letter, I accept the complainant's evidence that she never received a copy of the confidentiality agreement or compensation program including quotas and prospecting targets. At some point, however, she discussed with Mr. Demelis what she could expect to earn as a sales representative which is reflected in what I find to be his handwritten notes. These notes represent his rough calculation of what a sales representative could expect to earn based on a certain level of monthly sales. His notes indicate that at a level of sales of $30,000 a month, she might earn $4,033 a month, inclusive of her annual salary. She says she understood this to be a target for an intermediate sales person. At a level of sales of $50,000 a month, which she understood to be a target for a senior sales person, she might earn $6,250 a month, again inclusive of her annual salary.

62She testified that she understood that she would be working her way up to the target of $30,000 a month, but that Mr. Tait had told her that sales of $15,000 to $20,000 a month would be reasonable for someone at her level for the first six months of employment.

63In his evidence Mr. Brunet testified that new sales employees would have been given a similar offer, but he had no explanation for why a copy of the confidentiality agreement or compensation program including quotas and prospecting targets was not part of the agreement. He testified that Mr. Demelis told him that the complainant was given quotas.

64Mr. Brunet could not remember what was expected as an amount for sales in the first month of hiring, but offered that he thought a quota of $15,000 a month was low. In cross-examination he stated that he would have expected between $10,000 and $20,000 a month in sales from the complainant.

65The complainant testified that at no time was she told during her training of the requirement of closing deals during that period. She testified that a senior sales manager had told her not to be discouraged if she didn't close any deals during the first three months. He said to focus on cold calling and prospecting for customers to "fill up the funnel". He told her that with consistency, dedication and time she would close sales.

66I find that all these figures were estimates or perhaps expectations, and did not represent in any way a fixed sales quota for the complainant during her three-month probationary term. Mr. Tait testified that there was no sales quota for probationary employees and during that probationary period the emphasis was on prospecting and presenting. In my view, it would not fit within commercial reality to expect a new employee, even one that had some previous experience at Telefficiency, to have a firm sales quota established until, as the letter indicates, after their probationary period had been successfully completed.

Sales Training Session

67The complainant began her second stint of employment at Telefficiency by attending what was to be a four-week training session that, because of scheduling problems, extended to approximately five and a half weeks. Although in his evidence Mr. Brunet felt that, due to her previous experience, she did not have to attend all of that training session, there was no evidence that that was ever communicated to her. Furthermore, I accept her evidence, there being none to the contrary from Mr. Demelis, that during the interview process he told her to "toss" some brochures she had retained from her first period of employment because they were dated. Although Mr. Brunet tried to establish in his evidence that there were no great changes in the company's product offerings in 1994 and 1998, the telecommunications industry is one that evolves quickly, and while I accept that the Northern Telecom base unit may not have changed, the software and features did. As a result, I accept that, like other new hires at the time, there was an expectation that she attend the training session, which through no fault of her own, exceeded the four-week schedule.

68Finally, although it may have been the case that both Mr. Demelis and Mr. Brunet had higher expectations for the complainant, or were judging her performance on a different standard than other new hires because she had worked at Telefficiency previously, I find that this was never communicated to her. Mr. Brunet had little interaction with the complainant. Mr. Demelis did not appear as a witness to give his evidence on the issue and Mr. Tait's evidence clearly demonstrated that, while he did make some attempts to discuss her performance with her, a higher expectation was never a subject.

69Yet, there was some evidence that Mr. Tait had concerns about her work. Mr. Tait recounted an occasion when, as a method of generating sales leads, members of his team would make calls in another member's assigned sales territory. While the complainant was prepared to make calls for other members of the team, she did not want other members to make calls in her territory. While recognizing that everyone's activity and sales could have been better, he testified that he thought that this was an opportunity for other people to help that she denied, and this surprised him. As will be discussed later, Mr. Tait was also concerned about her sales activity.

BILL CLUBINE

70Bill Clubine had a lot of experience in the telecommunications field, and was running his own business when he met Mr. Brunet. As with other owners of telecommunications companies, they attended some of the same events and sometimes shared equipment. Mr. Clubine testified that their relationship, both before and after their companies joined to form Telefficiency, was primarily a business one. Although they would engage in casual conversation, for the most part their families did not socialize. In his evidence Mr. Brunet took great pains to emphasize that although they had travelled together on business and attended seminars together, this was not a regular occurrence. Mr. Brunet testified that their relationship was more professional than personal, although they did socialize on occasion, and they were accessible to each other twenty-four hours a day.

71Mr. Clubine described himself as the Chief Financial Officer and Chief Development Officer of the Company. He testified that, although he had been engaged in the recruiting of senior employees for the company, he had no responsibility for hiring or firing employees.

72His overriding goal and responsibility at Telefficiency was to get the company publicly listed to access the funds that a capital market could provide. To that end Mr. Clubine was the one who would undertake the dealings with the various investors and the mechanics of having the company listed, ensuring that the underlying financial data that was reported was as robust as possible.

73Mr. Clubine testified that, during the public listing process, he would examine the company's financial data monthly to see if the company was profitable, and how much money was being spent for expenses. If he had a concern about sales numbers he would speak to Mr. Brunet, who would meet with Mr. Demelis and rectify it. He testified in chief that he would only comment about the sales of a sales team, and not a particular member of that team. Yet, he also testified in cross-examination that he, Mr. Brunet and Mr. Demelis would review reports that listed both overall team performance and individual performance during ad hoc meetings about sales.

74He thought that Telefficiency did "have a bit" of a cash flow problem at the end of March 1998 in relation to the Royal Bank and the reduction of a line of credit provided by Northern Telecom. When asked what was done to ease this cash flow problem, Mr. Clubine advised that meetings were held with the Royal Bank and Northern Telecom, but he did not recall much else being done. He did not recall if there were employee layoffs. He testified in re-examination that many in the market felt that there should have been deeper cuts, but Telefficiency's concern was the difficulty in rehiring productive sales persons after funds were generated from the public offering.

75Neither Mr. Clubine nor Mr. Brunet thought it would take as long as it did to achieve the public listing. There were many telephone calls to lawyers and investors and many anxious moments. It became a matter of attrition, to ensure that the company could survive just long enough to get into the capital markets. Mr. Clubine testified that in early 1998 the company was almost bankrupt, but that it successfully went public in August of that same year.

76Mr. Clubine said that the public listing consumed most of his time and required him to work outside the normal workday hours. He said it also made him "short" and fairly uncommunicative at work. In the workplace he said that he was not easygoing with staff and not the friendliest or the best person to be around at that time. He describes himself as a "numbers man" and "straightforward and blunt" and "not a joking person". He says he had very little interaction with non-management staff and does not recall ever initiating a conversation with staff employees at off-site corporate events.

77Out of work, however, he led a fairly active social life. He was a member of a ski club that he attended with his family. He also regularly attended at a restaurant called Topiary's, situated near the Telefficiency offices, and a restaurant in Toronto called Centro's. He was a regular at Centro's and he said he would attend there with Telefficiency staff and business associates. In contrast to his work persona, Mr. Stamatakos, the bartender at Centro's who regularly served Mr. Clubine, described him as engaging and friendly, sometimes telling jokes. He says they would often discuss a variety of topics.

Mr. Clubine's Interaction with the Complainant

78The complainant testified that during the second period of employment, in light of the advice that he had given her the first time, she viewed Mr. Clubine as someone who could act as her mentor. She never told him this, however.

79Mr. Clubine testified that his relationship with the complainant was the same as he had with other staff and at one point in his evidence said that he did not know the complainant to a greater extent than saying hello or goodbye.

80He testified that he never discussed her sales performance with her and never went into the sales area to speak with her. He did, however, go into the sales "pit" area where she sat, to look at the sales board twice a day.

81However, and in contrast to how he described their relationship and what he portrayed as his serious work persona, Mr. Clubine testified that, during the second period of her employment at Telefficiency, the complainant often visited his office, about twice a day, and they would talk. Although he couldn't recall a single conversation that they had, he testified that they were not work related. He said the visits would be for three to five minutes, and although he would never tell her he didn't have time to talk, he would end the visits by starting to work. He said that he did not enjoy the attention from these visits and did not recall this occurring during the first occasion she worked at Telefficiency.

82Notwithstanding this frequent interaction during her second period of employment at Telefficiency, unlike Mr. Fauzi Zamir who admitted that he was aware of the existence of the mentoring relationship he had with the complainant, Mr. Clubine said that he never viewed himself as her mentor, nor was he aware that she saw him in that role.

Dinner at Topiary's Restaurant

83The complainant testified that within one or two weeks of her working again at Telefficiency, in the course of a conversation in his office, Mr. Clubine asked her if she liked seafood, as he knew a restaurant that served it well. When she said she did, he said that he should take her there. When she said sure, he suggested that evening. She agreed.

84The plan was to meet in the Telefficiency parking lot to drive to the restaurant. As she did not know the way, she would follow in her car. She testified that he drove a "taupy grey SUV" on that occasion. When they arrived at Topiary's restaurant she says they both parked in the restaurant parking lot.

85The complainant testified that, during the dinner, Mr. Clubine's conversation became sexual. She testified that he commented about his ski club and how it was "wild" and that he had sex with two of its members. She testified that in an effort to redirect the conversation she asked him how his wife would feel if she knew about how he behaved outside their marriage and how the women that he "carried on with outside his marriage felt about the nature of his involvement with them". She testified that he replied that they are comfortable with his marital status and some of them were married too, so it was not an issue. She did not pursue the matter further. Nor, does it appear according to her evidence, did he.

86The complainant testified that she felt Mr. Clubine's comments were inappropriate and crude and that he was "vulgar". She rhetorically asked in testimony that she thought, "What is he trying to tell me?" Then that she thought at the time that perhaps he was suffering a mid-life crisis and trying to impress her by telling her of his sexual prowess.

87She admitted, however, that aside from her attempt at rebuke by mentioning Mr. Clubine's wife, she never said that his comments were unwelcome. She testified that she felt that if she did, she would be perceived as confrontational or aggressive and that her job would be in jeopardy.

88After dinner he walked her to her car. They spoke for a short while and then each left. She testified that she wondered at the time why they had spent time in the parking lot conversing.

89At the hearing Mr. Clubine denied ever engaging in a sexual conversation with the complainant or telling her his ski club was "wild", and alternated between denying that a dinner alone with the complainant ever took place at Topiary's and that he did not remember having dinner with her alone. This position was reiterated in the pleadings that he filed. He also vigorously disputed the complainant's evidence of where he parked his car at Topiary's and where they allegedly sat, endeavouring to cast doubt on her assertion that they were there, or there alone.

90Yet, as confirmed in the evidence of the Commission Investigator Valerie Pollack, and supported by the notes of her investigative meeting with Mr. Clubine on May 11, 2000, he told her that, "we were at dinner one time at Topiary's".

A Few Days Later

91The complainant testified that a few days later Mr. Clubine said to her in relation to their dinner at Topiary's that, "I can't believe nothing happened". She said that at the time she did not know what he meant by that comment, but after some consideration hoped that Mr. Clubine had not expected her to be more involved with him in a sexual or physical way. She testified that this revelation made her feel uncomfortable and threatened. She says she was not prepared to engage in this type of activity with Mr. Clubine and was fearful that this was the beginning of what may be future attempts at propositioning her.

92Although she did not identify the date when the conversation took place, the complainant also testified that, in the course of one of their conversations after the dinner at Topiary's, Mr. Clubine had told her that it was very unwise for a woman to put him in a threatened or compromised position and that he would get nasty if a woman tried to back him into a corner. She testified that, in her view, the comment was made out of context at the time.

Dinner at Centro's

93There was no evidence led that any other interaction of concern occurred between her and Mr. Clubine until the evening of April 2, 1998.

94The complainant testified that some time after lunch that day she was in Mr. Clubine's office. She says that he commented that he was experiencing a particularly stressful day and could use a drink. She says that he asked whether she would be interested in joining him. She said that she thanked him for the invitation but that she told him she had other plans. There was no evidence led that he expressed any disappointment at her not attending or pursued it any further.

95According to Mr. Clubine, the events did not unfold in this way. Rather, he was having a conversation with Mr. Spizziri in the hallway about going for a drink at Centro's that evening. They were to meet at 7:00 p.m. He conceded that the complainant was present for some of the conversation and although he denies also inviting her along, testified that she told him she was busy. He could give no explanation why the complainant said she was busy.

96The complainant testified that, later on that afternoon, however, her plans fell through and she returned to Mr. Clubine's office to tell him. She said that he invited her again and this time she agreed. Mr. Clubine acknowledged in his testimony that the complainant did attend at his office to advise him that she was not busy anymore, but as for "going somewhere", he didn't remember.

97In the absence of evidence from Mr. Spizziri about how the invitation came about, I prefer the evidence of the complainant that she was expressly invited by Mr. Clubine to come along to Centro's that evening. I did not find Mr. Clubine's explanation complete or credible. In my opinion, I was provided with no other reason for her to initially tell him she was busy or to later attend at Mr. Clubine's office to personally advise him that her plans had changed, unless it was in reference to an invitation that he had extended to join him at Centro's that evening.

98When asked in direct examination why she would agree to go to Centro's with Mr. Clubine after her experience at Topiary's she said, "Because I dismissed his conduct as being disrespectful towards women, but in no way being relevant to my relationship with him". She also testified that she was using this as a chance to get reacquainted with Mr. Clubine, whom she expected to be interested in her progress as a mentor and ally. She understood that Mr. Clubine regularly frequented Centro's and invited company staff to join him there, and that she had been to Centro's with Mr. Brunet, Mr. Clubine and Telefficiency staff following a business seminar. So, she says that she did not perceive Centro's as a place of meeting in a personal context. Nor, she says, did she perceive the invitation to Centro's as an invitation to meet in a personal context.

99In cross-examination, Mr. Clubine testified that dinner alone with the complainant would not have been appropriate unless it was business-related, but that there was a distinction between having drinks and having dinner. If he had dinner alone with the complainant, he said that "chances are", it would have had something to do with Telefficiency business.

100The complainant testified that she left the office at 5:30 p.m., bringing some work material to the restaurant. She says she arrived between 6:00 to 6:30 p.m., and proceeded to the downstairs wine bar. Although she alluded to reviewing this product literature as being an extension of her work day, and that she viewed this meeting to be more business than social, I do not believe that to be the case. In my view, although she might have expected that some business may have been discussed, because of the nature of the invitation, it was not reasonable for her to expect this to be a business meeting. In the same vein, I believe she brought the work materials to the restaurant to pass the time while waiting, not for any business-related purpose.

101Mr. Clubine attended at Centro's frequently and sometimes went to the restaurant directly from the office. He said that day, however, he decided to go home, shower and change and then drive to Centro's in his 1997 Black Twin Turbo Porsche. He testified that he takes off his coat when driving, but does not recall if he took his coat off that evening, although he thinks he would have.

102The complainant testified that Mr. Clubine arrived at 7:30 p.m. and sat at her table. When he inquired why she was reviewing product material she explained that she was enthusiastic about learning about the products and that it had been a long time since she was passionate about her work. She says [that] after approximately fifteen minutes Mr. Clubine invited her over to the bar for drinks and sushi.

103Mr. Clubine denies that he ever sat at her table. He says that when he went downstairs to the wine bar he was surprised to see the complainant there. He testified that out of politeness he had a short conversation with her while he stood at her table and then made his way to his regular position at the bar. He explained that at the wine bar he usually has drinks and sushi. When he arrived at the bar Mr. Stamatakos had his regular drink waiting for him. He says that the complainant joined him shortly thereafter. He made a point of stating that he did not invite her to join him.

104There was some controversy over how the complainant obtained her drinks that evening. She testified that Mr. Clubine asked her what she drank and she told him, understanding that he would be paying for them, as he did at Topiary's. She also testified that after she received her first drink she was never asked if she wanted another, the drinks being replenished as her glass emptied. Mr. Clubine denied throughout the proceeding ever ordering any drinks for the complainant.

105Mr. Stamatakos testified that he asked the complainant what she wished to drink and that before he replenished her glass asked if she wished another.

106In my opinion, this is not a matter of very great controversy. All agree that drinks and sushi were provided for and consumed by both Mr. Clubine and the complainant. If it is necessary to determine this issue, although I believe that much of the evidence he gave at the hearing related to Mr. Clubine's normal practices at Centro's and not the events of that night, I accept Mr. Stamatokos's evidence that he asked what the complainant wished to drink and obtained some sort of acknowledgement from her before he brought another. All of them understood that Mr. Clubine was paying the bill.

107The complainant testified that during the time at the bar, Mr. Clubine's conversation again became sexual. She said that he commented on the size of his penis and how he was blessed with a large one. She testified that he demonstrated by holding up a number of his fingers and talked about how other women had commented on it. She says he also talked about where he liked a woman's nipple to be located on her breast.

108She testified that during this period of time he propositioned her sexually by asking her if she would sleep with him. She responded by stating that he was a married man and that she worked for him and under no circumstances would she consider sleeping with him.

109She testified that he responded to her refusal by saying that she did not work for him, rather she worked for Mr. Demelis. She took issue with that. She said that Mr. Demelis reports to him, so indirectly she does work for him as he is the more senior of the two.

110The complainant testified that during that period of time she thought that Mr. Clubine could not possibly have any idea how his conduct was affecting her. Instead, she says she internalized it, wondering if Mr. Clubine was a deeply insecure aging male experiencing a mid-life crisis and why was he saying those things to her. She never verbalized this to him or expressly stated that his comments were inappropriate or unwelcome.

111She said that she was nauseous, upset and anxious about what might happen next, so she went to the washroom. She said she had been propositioned and was fearful of any repercussions. After she vomited for five to ten minutes she returned to where Mr. Clubine was sitting. She told him she was feeling ill and that she wanted to go home.

112She says he paid the bill and then walked her to her car situated in a well-lit public parking lot north of the restaurant. She says she was surprised to find her car parked next to the same vehicle that Mr. Clubine had driven to Topiary's. She testified that he suggested that she start the car and they wait in his vehicle for it to warm up. She replied that she didn't feel well. He replied "You don't feel well, well you look like shit". At that point she says he touched her sexually.

113In direct examination, she described the event as him kissing her and reaching under her sweater to pull her bra away from her breast and then touch her breast. She says she did not pull away initially because she believed that she could tolerate it and then be able to leave. However, she says she then pulled away and said, "I can't do this". She said he replied by stating, "Then what am I supposed to do with this", and pointed at his crotch. She says she did not reply, but got into her car and drove away.

114During her cross-examination, although no mention of this was made in any of the documentation filed in this proceeding, or previous viva voce testimony, the complainant expanded on what occurred. She testified that instead of just touching her breast, Mr. Clubine put his mouth upon it. In addition, the complainant testified that she pretended to enjoy what Mr. Clubine was allegedly doing.

115Mr. Clubine denied engaging in any sexual conversation with the complainant, propositioning her sexually, noticing that she was ill or commenting on her appearance, walking her to her car, driving the car she alleges he drove, parking in the same parking lot, touching the complainant in any way or pointing to his crotch.

116Although Mr. Clubine did not think it was necessary to locate the employee of the valet service that parked his car for him that night to corroborate his evidence, he testified that he is known to always use the valet parking services when he attends at Centro's and that he used them that night. Mr. Brunet also testified that in his experience, Mr. Clubine always uses valet parking, except for one occasion when Mr. Brunet directed that he use a public lot.

117Mr. Clubine testified that most of the time that evening, he, Mr. Stamatakos and the complainant were conversing, although he could not remember what they conversed about, except that it was casual. However, he testified he did remember two specific things. He testified that although the complainant tried to talk about work, he dissuaded her by saying they weren't there to talk about that, because he wanted to relax. He also testified that the complainant had said to Mr. Stamatakos that she worked for Mr. Clubine. He says that he corrected her by stating that she worked for the sales department and Mr. Brunet, not for him. He said that Mr. Stamatakos was nearby them the entire evening. He testified in cross-examination that he does not recall more than one occasion that Mr. Stamatakos was not engaged in conversation with them.

118Although Mr. Clubine remembered the complainant leaving to go to the washroom, he does not recall her saying she was sick. As for why he remained at Centro's for some time after Mr. Spizziri was supposed to meet him, he says that he is used to sales people being late. He testified that within an hour of his arrival he realized that Mr. Spizziri was not attending, but that he may have wanted to give him the benefit of the doubt.

119He testified that after attempting to contact Mr. Spizziri by telephone and realizing he was not going to join them, he decided to leave. He motioned for the bill and told Mr. Stamatakos he was leaving. He says Mr. Stamatakos then phoned the valet, although he doesn't recall how. In direct examination he said he and the complainant got their coats and said goodbye. In cross-examination he said he could not specifically recall the two of them walking out the front doors together. He had no specific recollection of what he said to the complainant when leaving. He says he had no intention of walking her to her car. He testified that his 1997 Black Porsche that he had valet parked was in front of the restaurant with its motor running. He says he got into his car, made a u-turn and drove north on the street in front of Centro's. He testified that when he last saw the complainant that night he believes she was walking in a northerly direction on the same street. He says they left the restaurant between 9:00 and 9:30 p.m.

Arriving Home from Centro's

120The complainant testified that when she arrived home that evening she was upset and afraid of what repercussions may occur, so she called Luigi Maestro. She says she told him that her boss had come onto her in a parking lot and that she had been violated. In his evidence Mr. Maestro confirmed that some time after the complainant had been hired he received a late night call from her. He testified that she told him that a dinner/business meeting she had with one of the top executives at Telefficiency turned into a sexual proposition. She told him that she was propositioned to have sex at a table in a restaurant and she was in shock and walked away. She told him that the executive followed her to her car and propositioned her again in the parking lot. He believed that he received the call on the same night it occurred. He was not aware of any other incidents of sexual harassment in her life or of any previous meetings that she had with Mr. Clubine.

The Day After Centro's

121On the following day, Ms. Cugliari attended an off-site company-wide product knowledge day. This was an event that regularly occurred and was used both to enhance company knowledge and for employee motivation.

122She testified that during this event she was asked by Mr. Brunet to stand and introduce herself along with other new hires, which she did.

123She testified that when she returned to the office she checked the company parking lot to see if Mr. Clubine was in. She also walked by the executive offices but he had not then arrived. Feeling anxious and fearful, she says she called Mr. Zamir. She testified that he advised her that she had better make sure that Mr. Clubine did not feel threatened.

124For the most part, Mr. Zamir corroborated the complainant's evidence. He says the complainant told him that she had gone out for dinner with Mr. Clubine. She said that she was not well and left early. Mr. Clubine said fine and that he would escort her to her car. She told him that in saying goodbye, Mr. Clubine reached over and tried to kiss her and touched her inappropriately, Mr. Zamir believes, on her breast. Mr. Zamir says that during the telephone call he advised the complainant to talk to a human resources person, if the company had one. He also said to tell Mr. Clubine that she was offended by what happened and that it ought to never happen again. He gave no evidence that he advised her that she had better make sure that Mr. Clubine did not feel threatened. He testified that she never talked to him of any other allegation of sexual harassment.

125The complainant testified that after her conversation with Mr. Zamir, the complainant looked for Mr. Clubine's car once more and then went to his office.

126She testified that when she got there she stated to Mr. Clubine that the night before never happened and she promised never to mention it. She said that she could be discreet and that she wanted to work for Telefficiency and to keep her job. She testified that upon hearing this, Mr. Clubine walked from behind his desk. She backed up. She says that he stared right at her and said, "You're doing what Michael does — you're overstating your case". He then turned around and walked back to his desk. She testified that he did not ask her to express how she felt and was not the least concerned about her feelings. She testified that he very possibly felt threatened by what she said although she could not say why.

127In cross-examination Mr. Clubine confirmed that the complainant came into his office that day and apparently attempted to close the door. He said that he told her to keep the door open. He testified that there was no reason for her to be closing the door. He agreed that she said something along the lines of "about being discreet", but he was not sure what about. He said that the comment about being discreet resulted in him feeling uncomfortable. In re-examination he offered that if a female told him that they could be discreet he would think that the individual would be up to something inappropriate, in a sexual manner. He says that he did not, however, relate the complainant's use of the word "discreet" to the alleged events of the previous evening, rather they related to her visits to his office and her "showing up" at Centro's the night before.

128Mr. Clubine further testified that meeting the complainant at Centro's had made him uncomfortable. He said he might have missed something regarding the first letter, her visits to his office or her wanting a mentoring relationship. He also testified that the visits at the beginning did not make him wary but towards the end "maybe". He says, however, that he did not talk to anybody about it. When he was asked if he felt like he was being set up at that particular time, he said that he thought there was certainly something going on, but what it was he was not "100 percent sure". He testified that he could not expand on the statement that he made at para. 20 of his response dated November 23, 2001, when he wrote "I thought that she was looking for something that wasn't there".

129The complainant testified that a couple of hours later she was sitting at her desk when she received a call. It was Mr. Tait asking her to meet him in the boardroom that afternoon. She says she panicked because she felt that there was no reason to have such a meeting.

130When she arrived at the meeting room, Mr. Tait and Shirley Hale-Sanders were seated. She says that she was told by Mr. Tait that she was terminated effective immediately as things were not working out. She asked for an explanation but Mr. Tait said he had somewhere else to be and Ms. Hale-Sanders handed her a termination letter dated April 3, 1998. The complainant testified that she was distraught. As there was no explanation for the dismissal in the letter, she asked Ms. Hale-Sanders, who responded that she was not privy to any reason for her dismissal. Ms. Hale-Sanders then helped her collect her things and walked her out of the building. The complainant led no evidence that she recounted to Mr. Tait or Ms. Hale-Sanders any of her previous interactions with Mr. Clubine or what she alleges occurred the evening before.

131The Record of Employment ("ROE") dated April 7, 1998, indicates the reason for her termination was because she was not suitable. The complainant testified that she had no idea what that meant.

132When she got to her car she called Mr. Clubine and told him she was fired. She says that he sounded surprised to be hearing from her. She testified that he said that he would talk to Mr. Brunet, who would know why, and to call him on the following Monday.

133Mr. Clubine testified that he was surprised when the complainant called him at the office to tell him she had been dismissed. He said that he had no input or influence in the decision to dismiss the complainant and no one would have discussed it with him. It was not his realm of responsibility, he said. He agrees that he promised to find out what happened and gave her his home and cellular phone numbers. However, he did not speak to Mr. Brunet on April 3, 1998. He says he instead spoke to Mr. Demelis in person who told him the reason the complainant was dismissed was because of sales. He says that because the termination took place during her probationary period he made no further inquiries. He says he never spoke to Mr. Brunet because there was nothing to discuss. He testified that he did not tell Mr. Brunet about his plans to attend Centro's the evening before, nor advised Mr. Brunet, or Mr. Tait, that he had seen the complainant there. He says that, although the complainant called him numerous times afterwards, he does not remember calling her back.

134That weekend the complainant called Mr. Tait at a number she had obtained from directory assistance. She says that he told her that the decision was made by Mr. Demelis based on poor sales performance. She says he also stated that for whatever it was worth she had been there because of him, not in spite of him, and that he felt there was not a sufficient amount of time to make a fair assessment of her abilities.

135Mr. Tait testified that when the complainant called him the day after her termination, he told her that there were more people involved in the decision than just him. He said he told her that she was a good person and to get on with her life. There was no evidence that the complainant shared with him the allegations against Mr. Clubine. He did find out afterwards, however, and admitted in cross-examination that the timing of the termination was "extraordinary".

136The complainant then attempted to speak to Mr. Clubine. She received no return call, but on April 6, 1998, was able to reach Mr. Demelis. She says that in answer to her query he told her that he did not make the decision to terminate her and that if she wanted an explanation, she should speak to Mr. Tait.

137The complainant testified that she then successfully reached Mr. Clubine. She says he told her that he would attempt to arrange a meeting or conference call with Mr. Brunet and Mr. Demelis in order to find out the reason for her dismissal and to call him back. However, any further attempts to speak to Mr. Clubine were unsuccessful. The complainant was ultimately told by her counsel to stop calling.

138The complainant also testified that during this period of time she left a voice mail for Mr. Brunet. However, she made no specific reference to the conduct of Mr. Clubine. She testified that she simply left a message that she had been terminated and was concerned about her multiple unsuccessful attempts to get a reason for it.

139Mr. Maestro testified that when he and the complainant spoke a few days after the late night call regarding the proposition by a top executive at Telefficiency, she told him that the company was isolating her and eventually let her go. He said that, in addition to shock and disbelief, she was demoralized, and felt like a victim in some sort of manipulation. He advised her to find out the truth, as best she could, and to keep her integrity. He also suggested that she see if people at the company would talk to her. He testified that when they spoke later she told him that the company was not giving her any information. She told him that the person involved in the proposition was unavailable and another executive was vague and not forthcoming with information.

140Mr. Zamir testified that the complainant advised him that the reason she was given for her dismissal was that it was performance related.

MICHAEL BRUNET'S ROLE IN THE TERMINATION

141As acknowledged by the Commission and the complainant, because there was no direct evidence, the case against Mr. Brunet was circumstantial. The primary allegation was that the decision to terminate the complainant was made after input from Mr. Clubine on the day she was dismissed because she had refused his advances or because he was concerned that she may take steps to report the harassment. The secondary position was that the complainant was terminated the day before as a result of suspicions over Mr. Clubine's sexual conduct and interest toward the complainant and this was a factor in the decision to dismiss her. The third position, advanced for the first time during final submissions, and without, in my view, sufficient notice having been provided, was that one of the factors for the termination was rumours in the workplace of mental instability linked to sexual activity. In support of this third position the Commission relied on the decision of Vice-Chair Laird in Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.) (" Moffatt").

142Although this third position can be dealt with on purely procedural grounds, even if it can somehow be established that sufficient notice of seeking to found a breach of the Code on this alternative basis of liability was provided, I find the similarities between this case and Moffatt to be extremely tenuous.

143In my view, it was not established that the type of pervasive and invasive workplace rumours and gossip that were found to exist in the Moffatt case exist in the case before me. In any event, I am not satisfied that there was established any link whatsoever between any rumours, including rumours of the complainant's mental instability linked to sexual activity, and her termination. I now continue with discussion of the first and second position.

144It is undisputed that Mr. Brunet had little or no direct interaction with the complainant. The evidence also shows that a number of sales representatives were hired at or about the same time as Ms. Cugliari and they had varying degrees of experience. As discussed above, the sales representatives were organized in teams headed by managers who reported to Mr. Demelis. Mr. Demelis reported to Mr. Brunet. Mr. Brunet had the responsibility for the sales operations and often served as trainer or lecturer in training courses for Telefficiency. It would appear that the complainant attended at least one of his lectures on sales during her training.

145The complainant testified that she was terminated only one and a half weeks after her training ended and had no inkling about any concerns over her performance. She asserts that no other similarly positioned trainees were dismissed. She also testified that, only two to three weeks before she was dismissed, she had met with Mr. Tait who had told her that she had 90 percent of what it took to do the job and the remaining 10 percent could be obtained by increasing the amount of cold calls she was doing.

146She testified that at the time of her termination she was going through a company prospect list in which she found errors, and that Mr. Clubine had pointed out the customers he knew. She acknowledged, however, that Mr. Tait, her sales manager and direct report, was not aware of the time consumed in pursuing leads from the prospect list.

147Due to the errors in the company-provided list, the complainant says she obtained a business directory with her own funds. She was compiling a list of contacts from that directory. She also had three transactions underway. These were with a company called Sprocket, which the complainant described as a "considerable" sale, an automotive dealership, which she described as a "substantial" deal for someone at her level and a company called Checkmate, which she described as a medium-sized deal.

148She was adamant in her position that she was terminated for reasons other than poor sales or poor sales performance, and those reasons were related to discrimination.

The Four Elements

149Mr. Brunet's position was that there were ample grounds for terminating the complainant during her probationary period and none of them were related in any way to discrimination.

150Mr. Brunet explained in his evidence that in his view there are four elements of successful sales. He described these as Prospecting, Presenting, Closing and Follow-up. He explained that Prospecting included making "cold calls". This is when a sales representative would call a customer to initiate a sale, instead of waiting for a call to come in. Presenting meant presenting a proposal. A proposal was a written document that provided a customer with what Mr. Brunet called a "solution", or a product that met the customer's needs. Mr. Brunet stressed that this should always be done in person. He stated that typically a sales person would have between eight to twenty proposals a month. Closing was when the deal was signed. Follow-up was when the sales representative did post-sale follow-up with the customer. It would appear this could include attending during the product installation.

151Mr. Brunet testified that cold-calling and presenting proposals was a critical part of a sales person's activity. If this activity was high, he said, it would translate into results and the sales person would be successful.

152In his view the complainant was an experienced sales person when she came to work at Telefficiency the second time. He said that his expectation was that she would not need the same training as a new hire. He stated that the complainant would have been exempt from the company's training session although he thought she might have sat in on it. He did not agree that someone could not prospect for sales while in training, but acknowledged that they could not maximize their potential.

153In his evidence, Mr. Tait testified that Mr. Demelis was expecting that the complainant would be a "shining star" because she had previous experience at Telefficiency.

154Mr. Tait testified, however, that while the complainant had many of the attributes of a successful sales person, she had low sales activity. For Mr. Tait, because it was early times in her employment and he viewed her as a junior and relatively inexperienced employee, it was not the actual sales that mattered, rather the activity that each sales person, including the complainant, reported on a sales activity sheet. Although no example of this document was tendered at the hearing, Mr. Tait described it as a sheet upon which were recorded a number of sales-related activities, including the number of prospects, number of calls and number of client meetings. Mr. Tait did not recall a provision for a sales quota being on the sheet. He explained that everyone, including him, had to fill them out. He testified that it was the complainant's weekly report that was his main concern. He testified that her reports did not have the same number of prospects or meetings as other sales representatives. According to Mr. Tait, the complainant did not have a satisfactory activity level.

155He explained that he and the other team managers would meet on a weekly basis with Mr. Demelis, who would review the sales reports produced by each member of the team. Mr. Demelis would review the activity reports with each of the team managers and then meet with Mr. Brunet to review the general sales figures for a specific time period. In cross-examination Mr. Tait testified that Mr. Demelis raised concerns about the complainant's performance a couple of weeks before she was dismissed. Mr. Tait also testified that Mr. Demelis was pressing for activity from the complainant more than anyone else. But, Mr Tait testified, Mr. Demelis felt that she was not willing to do what was needed to increase it. I admit the evidence of Mr. Tait's awareness of the concerns of Mr. Demelis, not for their truth, but rather that concerns about the complainant were expressed by Mr. Demelis to Mr. Tait.

156Mr. Tait says that he did try to motivate the complainant to increase her sales activities. He testified that a couple of weeks prior to her termination he met with her and told her that she had all the qualities of a successful sales person, and he believed that she did, but that her reports needed activity. But the next report she filled out showed none. He testified that in fairness he should have helped her more and that maybe he and Mr. Demelis should have sat down with her to emphasize the importance of the activity reports. He candidly stated that her honesty may have been her undoing. He testified that she may have thought it was important to learn as much about the company as she could but that she did not fully appreciate the importance of cold-calling and knocking on doors. He recounted that he was once asked by an operations manager to ask the complainant not to spend as much time with inside sales people as she had been.

Events Leading up to the Dismissal

157Based on the evidence of Mr. Brunet and Mr. Tait, it would appear that there were two separate occasions when the complainant's dismissal was discussed. It would appear from the evidence of Mr. Tait that a meeting took place between Mr. Brunet and Mr. Demelis before a final decision was made to dismiss the complainant. This may have been when the two had an ad hoc meeting to discuss sales figures. Mr. Brunet testified that although he had no intention to single out the complainant, nor started the meeting with Mr. Demelis with that intention, he was frustrated with sales results and that something had to be done about it. Mr. Brunet testified that the subject of who was not producing came up and the complainant was identified. It would appear that the two decided that she would be dismissed. Mr. Brunet testified that, although he did not take it lightly, in his view during an employee's probationary period they can be dismissed for any reason. He testified that he understood that it was much more complicated to dismiss an employee after their probationary period had ended.

158Mr. Brunet testified that to his knowledge the complainant's performance was very poor, although he agreed that the only activity that he was aware of at the time were the sales figures she had. He admitted that he was not aware of how her activities compared to other sales persons. Nor was he aware that she had brought in a car dealership transaction herself. Mr. Brunet also admitted in cross-examination that nothing struck him as out of order any time he had the occasion to observe her at work. The only thing he says he can recall is that she seemed to spend a lot of time in the office and that he would see her more than other sales representatives. He says, however, that would not have not been a factor in her termination, although it may have been in the back of his mind.

159In cross-examination, Mr. Brunet ultimately agreed that the complainant was not fired for having zero sales activity and performance. He testified that he had no explanation why Mr. Clubine made that statement in his response dated November 23, 2001. Although he signed a letter dated June 29, 1998, in response to the complaint, that stated that lack of sales was the only reason for her termination, he says that there were more.

160Mr. Brunet was adamant throughout the proceeding that he was not aware of any of the alleged conduct of Mr. Clubine when the decision to dismiss the complainant was made, and that Mr. Clubine had no input in the decision.

The Timing of the Decision to Dismiss

161Mr. Tait testified that the final decision to dismiss the complainant was made at a meeting that took place the day before the company-wide knowledge day. He testified that he, Mr. Demelis and another sales manager were present when the final decision was made. He testified that although Mr. Brunet was not present at this meeting, he understood from Mr. Demelis that it had been previously discussed with Mr. Brunet. Mr. Tait testified that he had no discussion with Mr. Clubine about the dismissal nor, to his knowledge, was Mr. Clubine involved in the decision. He testified that it was decided that the termination would take place after the knowledge day presentations. He testified that Mr. Demelis had told him that employees are let go on Fridays, although Mr. Tait could not remember any explanation why.

162Mr. Brunet testified that in his view employees were let go at the end of the work week. He says his practice is to keep things as normal as possible until an employee was actually dismissed. He testified that even though he was aware that the complainant would be dismissed later that day, in keeping with his usual practice at the company-wide knowledge day, he asked all new employees to stand up and introduce themselves. In keeping with his practice, the complainant was included.

163Mr. Brunet also testified that Mr. Tait was told to keep the dismissal simple. I am not certain whether this is second-hand knowledge, however, there being no evidence that Mr. Brunet spoke directly to Mr. Tait about how to conduct the termination before it took place. He testified that Mr. Tait was to simply say that she was no longer required and that she was not filling her sales quota. In cross-examination, Mr. Brunet stated that it is good business practice to inform an individual why they are terminated, but that every case was different. Again, there was no evidence that Mr. Brunet communicated this directly to Mr. Tait.

164Mr. Brunet explained that the wording that Ms. Hale-Sanders inserted in the "ROE" was the same wording they always used when a person was terminated within their probationary period: that the person was not suitable for the job.

165As Mr. Tait was a novice at termination, he testified that he relied on others to tell him how to proceed. He says that he was instructed to attend with Ms. Hale-Sanders and meet with the complainant. He was to present her with a letter and leave the room. He says that he was told not to give an explanation. He says that Ms. Hale-Sanders told him to keep it short and that she would explain things. He testified that he was not aware that Mr. Clubine had seen the complainant the night before.

THE RESPONDENTS' REACTION TO THE ALLEGATIONS AND COMPLAINT

166The first written notice of allegations of improper conduct by Mr. Clubine, and that the complainant's dismissal was related to that improper conduct, was a demand letter dated April 20, 1998. This was eighteen days after the alleged events at Centro's occurred. The letter details the substance of the complainant's allegations. The complaint followed.

167At the time that the demand letter was received Telefficiency had counsel assisting with various corporate matters. It would appear that after the demand letter was received, a telephone conference call took place. Mr. Clubine says that during this conference call, company counsel stated that the complainant had done something "like this" in the past. Mr. Clubine testified that prior to this conference call he did not recall the letter of April 20, 1998. He testified that after the demand letter was received he spoke to Mr. Spizziri who allegedly made some derogatory comment about the complainant. Mr. Clubine also testified that sometime after her dismissal, Mr. Spizziri told him about the complainant's prior experience of sexual harassment at another company.

168Mr. Clubine did not recall receiving the complaint directly, but testified that he read it. He also did not recall seeing the letter signed by Mr. Brunet, dated June 29, 1998, that was sent in response to the complaint, although he did have input in the third paragraph of the letter. It should be noted that while addressing the allegations at Centro's, the letter is silent with respect to the allegations of misconduct at Topiary's.

169Mr. Clubine did ultimately acknowledge that by June 29, 1998, at the latest, he was aware of the complainant's allegations.

170Mr. Clubine testified that he never received any training or courses on sexual harassment. He did not have a sexual harassment policy at his earlier company but he believed that Telefficiency had one. He never read such a type of policy himself. He said that if one existed it would be in the Telefficiency handbook. He stated that he was not sure if such a policy was important because he never experienced this type of situation before.

171Mr. Clubine was not aware of a complaints process at Telefficiency, whether informal or formal. He offered that staff would not ask him about these matters, they would instead go to their managers.

172I saw neither a written policy nor an employee handbook at the hearing.

173Mr. Brunet testified that at the time he received the complaint he was regularly meeting with Telefficiency's legal counsel who advised him to address it quickly and to make it clear the company was accepting none of the allegations. Mr. Brunet also undertook his own investigation, of sorts. He says that after he read the complaint he was shocked. He says that Mr. Clubine made it clear to him that he did not order drinks for the complainant at Centro's and made no advances. He also fixed on the allegation of the conduct taking place in a parking lot when he knew that Mr. Clubine did not park in the lot, but always used the valet. Mr. Brunet said that the only time that Mr. Clubine did not use valet parking was on one occasion when they were together. Mr. Brunet also spoke to Mr. Spizziri who confirmed that he was planning to meet with Mr. Clubine that evening but that his plans had changed. Mr. Brunet testified that the complainant never complained about Mr. Clubine's conduct at the time and that he was not aware of any mentoring relationship with Mr. Clubine. He testified that he concluded that the complaint was without foundation and was a malicious attempt to extort money.

174Mr. Brunet also commented that he was not aware that the complainant and Mr. Clubine had gone out to eat during the first time she worked at Telefficiency. He also testified that he may have seen the complainant attending in Mr. Clubine's office and recalls seeing them talking in the office reception area as well as the sales board in the back. He testified that at the time he didn't think the complainant attending at Mr. Clubine's office was odd, but admitted that he was not aware of the number of times that had occurred.

FINDING NEW EMPLOYMENT

175Some time was spent in the hearing reviewing Ms. Cugliari's work history before joining Telefficiency and her letters of reference. To regain her stamina, confidence and self-esteem, she testified she worked part-time at a primary school in the 1998 to 1999 school year and again in the fall of 1999. She testified that through vocational counselling with Human Resources and Development Canada she was re-employed commencing February 2000.

176There was no evidence tendered of job searches in newspapers or specialized employment newspapers or other efforts at finding employment prior to that time.

177Mr. Zamir testified that after her termination he arranged for an interview at a public relations firm, although she did not get hired. He says the complainant only got full-time work well over a year after the incident.

THE EFFECT ON THE COMPLAINANT

178The complainant testified that her treatment at Telefficiency caused her shock and humiliation. She says that she did not know how she would explain to her friends what had happened and she was concerned that her friends would lose respect for her. She says that for a four-month period after her dismissal she was in a perpetual state of anxiety and fear and she could not work. She says that she had trouble eating and sleeping and became reclusive and vulnerable. She says she felt unjustly treated and victimized. Mr. Zamir testified that the complainant was disturbed by the events and was despondent.

179The complainant testified that as a result of her experience at Telefficiency she needs to ensure that a full-time job is a safe place even if it means accepting junior level employment. She says that she is hypersensitive to interaction with men and concerned about what their agenda really is. She is not confident accepting lunch or dinner invitations.

180The complainant stated that the reason why she pursued her complaint was to seek validity and closure with the hope of feeling more empowered.

EXPERT OPINION EVIDENCE

181Dr. Sandy Welsh, associate professor in the Department of Sociology at the University of Toronto, was called by the complainant to give expert opinion evidence.

182Dr. Welsh has been qualified as an expert witness in a variety of venues, including the Ontario Human Rights Board of Inquiry (see Curling v. Torimiro (No. 2) (1999), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468, although her testimony in that case was not subjected to cross-examination).

183Mr. Hart sought to qualify Dr. Welsh to provide expert opinion evidence regarding the prevalance, behaviour and impact of sexual harassment.

184In order to expedite the hearing, Mr. Hart proposed, and it was agreed, that Dr. Welsh would testify as to her qualifications, areas of expertise and give her evidence. Any challenge to her qualifications, her evidence or her expertise would be done in cross-examination. My ruling on her expertise, areas in which she was qualified to give expert evidence, the permissible scope of her testimony, and the weight to be given to any admissible evidence would be made after she testified.

185In the interests of fairness and expediency, I allowed the matter to proceed on that basis and deferred my ruling on her expertise, areas in which [she] was qualified to give expert evidence, the permissible scope of her testimony, and the weight to be given to any admissible evidence until this decision.

186In preparing to give her testimony in this case Dr. Welsh reviewed documentation that Mr. Hart provided to her, conducted a forty-five minute to an hour telephone interview with the complainant, and attended during the complainant's testimony.

General Propositions

187In her evidence, Dr. Welsh relied on the research, discussion and conclusions contained in a paper that she wrote entitled "Sexual Harassment's Most Frequently Asked Question: Why Didn't She Report the Harassment?" In the paper she addresses three problems that arise with people who fail to appreciate the nuances that exist in sexual harassment situations. The problems are:

(1) Ignoring the cumulative nature of sexual harassment by assuming women can and will respond to each offensive behaviour they experience;

(2) Assuming that women's coping mechanism always should have as their goal ending the harassment or solving the problem; and

(3) Assuming that how a woman responds to sexual harassment can tell us how serious she thought the harassment was or whether she consented to it or welcomed the sexual attention.

188The definition of harassment under the Code considers the cumulative nature of sexual harassment. Cases involving sexual harassment often involve a progression of conduct, and are considered both separately and cumulatively, from the perspective of the complainant, and objectively. Hence, the first factor Dr. Welsh cited in her paper and discussed in her evidence has been accepted for some time in sexual harassment jurisprudence.

189Dr. Welsh explained that a woman faced with sexual harassment often experiences an internal conflict over whether to react or to maintain an important professional or working relationship. Whether a power imbalance exists and the degree to which the behaviour has escalated are important factors, and sexual harassment is often only reported when they cannot face it anymore or they have suffered adverse employment consequences. Otherwise, they may adopt a strategy that allows them to maintain the relationship. She testified that there is often an escalation in behaviour from initially grey behaviour into more directed comments and physical or sexual touching.

190With respect to the third element, Dr. Welsh says that a sexual harassment case should focus on the behaviour of the respondent, not the complainant. She says a respondent bears a responsibility to determine whether their actions were unwelcome.

191She posits that focussing only on a dichotomy of assertive behaviour (telling a person to stop) and non-assertive behaviour (saying nothing) creates a widespread and partially false assumption that "assertive responding is always both appropriate and effective". Her position is that complainants "say no" in a variety of different ways.

192Dr. Welsh explains that a woman's behaviour in the face of sexual harassment or solicitation can be viewed both as externally and internally focussed. She explains that externally focussed behaviours include "avoidance", "seeking social support", and "seeking organizational relief". Internally focussed behaviours include "denial", "detachment" (or "endurance" — by just putting up with it and maybe it will stop or the perpetrator will become bored), "reattribution", and "self-blame" or "illusory control". She also explains that women will try to "normalize" the situation, or in other words, to make it seem like it is okay, so that if it involves a co-worker, they are not offended and can still keep working together. This she explains is linked to "denial".

193Dr. Welsh believes that the manner in which women cope with sexual harassment is often misconstrued. She says that behaviours that are not assertive are actually responses to the harassment. She says that an individual may be responding internally: they may be "evading" or they may be "denying".

194Dr. Welsh testified that harassment by a superior is more severe than harassment by a peer. If a woman is part of a mentoring relationship, which Dr. Welsh says is important to females in a historically male-dominated workplace, she is more likely to tolerate the conduct. She stated that commission sales would be an example of a male-dominated workplace.

195The consequence of using avoidance behaviour when seeking a mentoring relationship is that this opportunity for informal learning is lost. Dr. Welsh says that the work relationship does not end when the employees leave the workplace, and can remain while at dinner or a bar. She says that good mentoring occurs in and out of the workplace.

196Dr. Welsh also testified that workers in probationary or temporary positions are more vulnerable than a full-time employee, and less likely to report harassment. These women, she says, are more likely to use tolerance and endurance as coping strategies.

197Dr. Welsh testified that based on her research the consequences of refusing a sexual advance ranges from loss of a job to physical harm. She says that the research shows that saying no can often make matters worse.

198Dr. Welsh testified that in her experience, it is not likely for women to fabricate allegations of sexual harassment. She says that most women choose not to report. Dr. Welsh also mentioned that the reporting or complaint process can be as bad, or worse, than the events complained about. Given the hardship suffered Dr. Welsh says it is amazing that women actually do report.

The Complainant's Behaviour in this Case

199Dr. Welsh testified that the patterns that the complainant engaged in, in this case, fits within the way women cope with sexual harassment.

200When addressing why the complainant went for a drink with Mr. Clubine at Centro's after being so offended by his behaviour at Topiary's, Dr. Welsh explained that interpreting this negatively is an example of treating one situation in isolation from another, when analyzing behaviour in sexual harassment is a cumulative multi-dimensional process.

201Dr. Welsh testified that the complainant asking at Topiary's how Mr. Clubine's wife would feel if she knew that he carried on in that way, fits within the pattern of how women cope in these situations. She said that the complainant was trying to deflect the conversation and change the subject, adopting the coping strategy of endurance. She testified that this is the most common coping strategy and is engaged in by many women to maintain a delicate balancing act with a work colleague. Many women do not confront the harasser for many reasons, including retaliation. Dr. Welsh says the complainant, not wanting to be perceived as aggressive and confrontational, also fits within the pattern.

202Dr. Welsh came to a similar conclusion with respect to the complainant's behaviour at Centro's. By not telling Mr. Clubine to stop his sexual comments and leaving, the complainant was engaging in the coping strategy of endurance. Dr. Welsh testified that the complainant was becoming more assertive when she responded to the alleged sexual proposition at Centro's by reminding him that he was married.

203She explained that tolerating the sexual touching in the parking lot and pretending to enjoy it was a form of endurance. Dr. Welsh testified that in a sexual harassment situation a woman has to make an assessment of the seriousness of the situation, and her safety. So tolerating it and pretending to enjoy it are ways to get through the situation.

204With respect to the complainant disclosing new details of the events in the parking lot for the first time in cross-examination, Dr. Welsh explained that women have difficulty disclosing the details of their experience. She says women fear that the allegation will not be believed, and that some women she has spoken to disclose what they feel is the most believable part. She says there are also feelings of denial, self-blame, humiliation and embarrassment. Dr. Welsh stated that recounting the circumstances may be even more difficult in front of a room of men.

205Dr. Welsh testified that, when the complainant attended at Mr. Clubine's office the following day and told him she could be discreet, she was engaging in more assertive behaviour. Dr. Welsh testified that the complainant is saying the unspoken, that something happened, but that she can be discreet about it, to indicate to him that she wants to keep her job.

206When asked about the circumstances the complainant described in her evidence, Dr. Welsh testified that a victim of sexual harassment can become what she described as a "silent tolerator". She states, however, that just because the complainant did not behave in a "common sense way" or did not say anything, does not mean that she consented or that the behaviour was welcome. She says that in a situation like this the power difference must be considered. Also, she says, one must consider the extent to which Mr. Clubine would have known that his behaviour was not welcome.

207In her view Mr. Clubine's behaviour demonstrates a range of behaviours moving from general to specific comments and then to sexual touching. In her view, given the complainant's evidence she experienced more serious sexual harassment, Dr. Welsh says. She says that the effects the complainant reported and the time that she remained unemployed was similar to those that participated in one of the studies.

208In cross-examination, Dr. Welsh testified that she was being paid for giving her evidence, that her fee was not tied to results and that she relies on grants to conduct her research. Mr. Brunet also attempted to show that the sample of participants and measurements for her research are not statistically sound. He also elicited that she is confident that the participants in her research were not lying. In cross-examination Dr. Welsh testified that there was a big difference between the details in the documentation, the complainant's examination-in-chief and the new details on cross-examination regarding the alleged touching, but this was not surprising or "earth-shattering" to her. In reply, Mr. Hart elicited from Dr. Welsh that the reason for the incremental disclosure may be because persons may be in denial and have blocked them out, only revealing the full circumstances when they testify.

209While I listened with great interest to the evidence of Dr. Welsh it is not necessary for me to make a determination on its relevance and its admissibility in this case. I made my determinations on liability based on the evidence and the credibility of witnesses other than Dr. Welsh. It was not necessary for me to refer to, or to rely on, Dr. Welsh's evidence to make those determinations.

THE LAW

General Principles

210Subsection 5(1) of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of sex.

211Subsection 7(2) of the Code provides that:

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

212Subsection 7(3) addresses sexual solicitation by a person in a position to confer, grant or deny a benefit or advancement to another person. It provides that:

7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

213Section 9 of the Code provides that no person shall infringe or do, directly or indirectly, anything that infringes these rights.

214In s. 10(1) of the Code, "harassment" means, "engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome". This language mirrors the wording in s. 7(2).

215As set out in Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.), in my opinion, it is necessary to establish the following four elements to make a finding of sexual harassment in a case like this one:

1. The respondent(s) engaged in a course of vexatious comment or conduct (subsequent cases have held, however, that a single act of sufficient magnitude may qualify as harassment in the circumstances);

2. At the relevant times, the complainant was an employee and the respondent(s) were the employer(s), or agent(s) of the employer;

3. That the comment or conduct complained of was known or ought reasonably have been known to be unwelcome; and,

4. That the comment or conduct complained of must be related to the complainant's sex.

216With respect to the third element, cases involving sexual harassment in the workplace that followed Ghosh have used language that leads to the conclusion that the knowledge of a respondent may be actual or constructive, indicating that an objective test may be used for the foundation of knowledge, i.e., that the respondent "knew or ought to have known" that the conduct was unwelcome.

217As I stated in Kalbfleisch v. Carillo (2002), 2002 CanLII 46513 (ON HRT), 44 C.H.R.R. D/163 (Ont. Bd.Inq.) it is well-established that an employee being subject to a probationary term is no defence to a claim of discrimination (see Rapson v. Stemms Restaurants Ltd. (1991), 1991 CanLII 13170 (ON HRT), 14 C.H.R.R. D/449 (Ont. Bd.Inq.) (" Rapson") and Allan v. Singh (1993), 1993 CanLII 16440 (ON HRT), 22 C.H.R.R. D/337 (Ont. Bd.Inq.) (" Singh")). Yet a probationary employment period still implies something less than full employment status and, other than the prohibition against discrimination, in employment law a lesser standard is often applied to the grounds for terminating an employee during a probationary period.

218It must always be kept in mind that this is not a case where a determination is made whether someone has been wrongfully dismissed in the civil sense, but whether the complainant has been discriminated against under the Code. To establish a breach of the Code, discrimination must be a factor in the conduct, but it need not be the only factor. That being said, a decision to dismiss a probationary employee can be a bad one, but if none of the factors or reasons for the decision is related to discrimination, the Code is not engaged.

Sexual Harassment in the Workplace

219Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 was the first case in Ontario to address a complaint of sexual harassment in the workplace. Although the case was decided under Ontario legislation that did not contain the language found in ss. 7(2) and (3) of the Code set out above, O.B. Shime found that conduct which amounts to harassment in the workplace fell within the general prohibition against discrimination on the basis of sex.

220In writing his decision, Mr. Shime attempted to strike a balance between sterilizing the workplace and striking out sexual harassment. At § 1390 he wrote:

The prohibition against such conduct is not without its dangers. One must be cautious that the law not inhibit normal social contact between management and employees or normal discussion between management and employees. It is not abnormal, nor should it be prohibited, activity for a supervisor to become socially involved with an employee. An invitation to dinner is not an invitation to a complaint. The danger or the evil that is to be avoided is coerced or compelled social contact where the employee's refusal to participate may result in a loss of employment benefits. Such coercion or compulsion may be overt or subtle but if any feature of employment becomes reasonably dependant on reciprocating a social relationship proffered by a member of management, then the overture becomes a condition of employment and may be considered to be discriminatory. [Emphasis in original.]

221The issue was revisited by Chief Justice Dickson of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. (1989), 1989 CanLII 97 (SCC), 10 C.H.R.R. D/6205 (" Janzen"). The legislation under consideration in that case also did not contain an express provision prohibiting sexual harassment in the workplace. Chief Justice Dickson also concluded that sexual harassment in the workplace was subsumed under the prohibition of discrimination on the basis of sex.

222After noting at § 44443 that "[b]oth sex discrimination and sexual harassment are broad concepts, encompassing a wide range of behaviour", he wrote:

[D]iscrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

223Chief Justice Dickson concluded that sexual harassment in the workplace had some similar elements. At § 44451 he wrote:

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

224In refuting an argument that because other provinces, including Ontario, amended their statutes to include specific language prohibiting sexual harassment, meant that sexual harassment is not covered by statutory language prohibiting discrimination on the basis of sex, Chief Justice Dickson explained that [at § 44453], "[t]he amendments were no doubt intended to make express and explicit what had previously been implicit".

225In my view, taken to its logical conclusion, this clearly demonstrates that in appropriate circumstances, a complainant in Ontario who suffers sexual harassment in the workplace may invoke the application of s. 5(1) of the Code, in addition to ss. 7(2) and 7(3). In my view those sections supplement, rather than replace, the prohibition against sexual harassment in the workplace in s. 5(1).

226The delicacy of a superior or supervisor pursuing a sexual interest in an employee requires little explanation or elaboration. As set out in Janzen v. Platy and as consistently emphasized in the authorities in this area, sexual harassment in employment involves the abuse of an unequal power relationship. In my view, because of this power imbalance, it is necessary for a superior or supervisor to constantly ensure that, when pursuing an interest in an employee, there is no misunderstanding between them. (See generally the discussion in Bannister v. General Motors of Canada Limited (1998), 1998 CanLII 7151 (ON CA), 40 O.R. (3d) 577 (C.A.)). In my view, pursuing a probationary employee suggests even greater vigilance. In my opinion, the greater responsibility rests on the superior or supervisor, and not the employee.

227Thus, while many cases involving sexual harassment involve clear expressions of disinterest by a person being pursued, as has been seen in the authorities (for example Rubio cited earlier) displeasure and disagreement can be voiced in other ways. Furthermore, because of the nature of the relationship it is not enough to rely on aquiescence as a foundation for acceptance. More proactive and dutiful steps must be taken when a superior or supervisor is pursuing an employee, whether probationary or otherwise.

ANALYSIS

228I must first make a general comment about the credibility of the complainant and Mr. Clubine.

229Throughout his testimony, Mr. Clubine made no statement that could be construed as being against his interest, and demonstrated in my view a highly selective memory. As an example, in giving his evidence about the evening at Centro's, the only two elements that he could clearly remember were telling the complainant that he did not wish to talk about work and emphasizing to Mr. Stamatakos that no reporting relationship existed between him and the complainant. Perhaps Mr. Clubine thought that this would assist his case by bolstering an argument that Centro's was not a work environment and that the provisions of s. 7 of the Code did not apply because a direct reporting line or sphere of influence did not exist. Whatever it was, I found it curious that these were the only things he could clearly remember about what was discussed that night. Furthermore, his version of the facts in his pleading and at the hearing was not consistent with the statements he gave to the Commission investigator. Although the questions that were asked were missing, in her evidence the Commission investigator explained what was asked and the answers that he gave. I accept her evidence.

230However, I am also approaching the evidence of the complainant cautiously. Grant it that the demand letter and her complaint were sent shortly after the events were alleged to occur and were supported to a degree by the evidence of Mr. Maestro and Mr. Zamir, but her evidence also contained very few admissions against her interest. I am also concerned about the incremental disclosure of the allegations about what occurred in the parking lot at Centro's that evening. While I accept that there may be some discomfort at recounting allegations, this was not the first time she reviewed them, although it was the first time they had changed. Furthermore, during the complainant's testimony, it appeared to me that she was attempting to make some of the facts fit more closely into a textbook sexual harassment case. That being said, on balance I believe the substance of the complainant's evidence to be true, and on most of the major points prefer it to that of Mr. Clubine. Where I believe there to have been exaggerations, or I prefer the evidence of another witness, I have indicated it in these reasons.

231I find as a fact that, during the first period of her employment at Telefficiency, the complainant and Mr. Clubine travelled together to a client installation. I do not accept that this was one of the clients that Mr. Clubine may have referred to Telefficiency, resulting in some sort of a vested interest. But even if it were, as she was then a new salesperson, and there was no evidence on the size of the installation, I am not of the view that the sale would have been of significant magnitude to justify his attending personally. In my view, this would have been unusual. As Mr. Clubine said himself, and other witnesses confirmed, he had no responsibility for sales. In my view, there was simply no good business reason for him to be there.

232Furthermore, although Mr. Clubine took great pains to emphasize at the hearing how busy and serious he was at work, it is also clear from the evidence of both Mr. Clubine and the complainant, that Mr. Clubine had great patience for her attendances at his office. Mr. Clubine's evidence was that he never told her she was not welcome nor to leave. He also testified that he attended at her desk to talk to her when he was in the area reviewing sales results. This is not the conduct of someone who is disinterested, and contradicts any assertion that Mr. Clubine treated the complainant like any other sales representative. Although he denied it, this also supports a conclusion that he enjoyed the attention from the complainant. I also conclude that there was only one reasonable explanation for the differential treatment — the complainant's sex.

233That being said, there was no evidence that, although she viewed him as a mentor, she ever told him so, nor do I believe that he was otherwise aware that she viewed him in that role. Granted that a mentoring relationship may arise without formality, in light of her sexual harassment experience at a previous employer and her concern about Mr. Clubine's purported comment to use "a little more sex to sell a lot more telephones" the first time that she worked for Telefficiency, it would have been prudent for her to explain why she was spending so much time with him, rather than leave him to guess. In this way, although she herself may have been seeking to create a relationship that transcended that of an employer and employee, by not establishing clearly what she sought, she ran the risk of him assuming that she was seeking a relationship of a different kind. However, as I explained above, this did not relieve Mr. Clubine from ensuring there was no misunderstanding between them.

234I accept the complainant's evidence that she had dinner with Mr. Clubine at Topiary's. I also accept her evidence that Mr. Clubine initiated and engaged in sexually charged conversation. In this regard, I make no determination as to whether or not the conduct that he told the complainant he engaged in at his ski club actually occurred, only that he told her it did. I also accept that she never expressly told him that the discussion was unwelcome, but instead attempted to dissuade him by making reference to his being married. Unlike the night at Centro's, however, there was no evidence that these events were discussed with anyone else, and the complainant did not thereafter modify her behaviour to avoid Mr. Clubine, even after he stated that he was surprised that nothing happened, continuing to attend at his office as she did before. Her conduct indicates to me that she was not overly troubled by his comments, perhaps ascribing it to what she described as Mr. Clubine's "mid-life crisis". I find, therefore, that although the complainant was affected by this banter, she was not materially so, nor to the degree that she alluded to at the hearing.

235That being said, however, I view the discussion at the outings before Centro's, all initiated by Mr. Clubine, as him attempting to pursue a sexual interest in the complainant.

236As explained above, I preferred the evidence of the complainant over Mr. Clubine with respect to how they came to meet at Centro's. I believe that Mr. Clubine fully expected the complainant to meet him at Centro's and that he went home to shower and change because of it. I also find that, contrary to his usual practice, he did not use the valet parking that evening. Although the complainant could not herself produce a parking receipt, no effort was made by the Mr. Clubine to locate the valet employee who parked his car to corroborate his evidence. I find that the evidence of Mr. Stamatakos on this point was a recollection of Mr. Clubine's normal practices, not those of that night. In my view, although it may have been awkwardly formulated, Mr. Clubine may have anticipated that if the complainant used the same lot, as they did at Topiary's, this may provide an occasion to talk, or something more, as they went to their cars to leave.

237I find that after a short time talking to the complainant at her table, he walked to the bar and she joined him. I accept the complainant's evidence that during a conversation with her Mr. Clubine again initiated and engaged in sexual banter, which culminated in sexual solicitation. Although Mr. Clubine asserted that this conversation would have been overheard by Mr. Stamatakos if it occurred, and Mr. Stamatakos did not hear any such conversation, I am satisfied that the bartender had other, albeit limited duties to attend to that night, and may not have overheard the conversation as it took place.

238Although again the complainant did not expressly say that his sexual banter was unwelcome, I find that she expressly rejected his advance. Shortly thereafter she went to the washroom and vomited.

239When the complainant returned to the bar she told him that she wanted to go home. I find that, notwithstanding his denial, Mr. Clubine offered to accompany her to her car and did. They both walked to the parking lot.

240I find that at the parking lot, although it was well-lit, public and may have had an attendant stationed at a kiosk, Mr. Clubine kissed the complainant and then touched her in a sexual manner. I do not accept, however, that the touching progressed to the extent as testified to by the complainant. At no time prior to the hearing did the complainant describe the event as she did at the hearing. I do not accept that this was because she did not feel comfortable explaining the event in full detail. She would have always been aware that the events of that evening were going to be the linchpin of her complaint, and likely had ample opportunity to describe the events as they occurred in the course of the investigation, yet never provided the details she did at the hearing, some years after the events took place. In my view, at the hearing, perhaps in an effort to bolster her case, the complainant chose to exaggerate what occurred.

241The complainant's evidence was that she pretended to enjoy the sexual touching, hoping that it would shortly end. Ultimately, she advised Mr. Clubine that she was ill and he desisted.

242I find that what is singularly lacking in the events as they transpired is any effort by Mr. Clubine to take appropriate steps to determine himself whether the statements he was making or the actions he took were unwelcome.

243The complainant had previously tried to divert sexual conversations and rejected his sexual solicitations, but he persisted in engaging in a course of vexatious comment and conduct, related to the complainant's sex. Whether it occurred at the workplace or after work hours, the nature of the relationship and unequal power imbalance, and her status as a probationary employee, of which I find Mr. Clubine was no doubt aware because all sales representatives were hired on that basis, did not change. Mr. Clubine's response to the allegations was a denial. Nothing occurred he says, nothing untoward, at least. There was therefore no evidence from Mr. Clubine of any steps to ensure that when he pursued a sexual interest in the complainant, throughout the course of her previous employment and leading up to the sexual solicitation and touching, that there was no misunderstanding between them. I find that no such steps were taken and that they should have been. I conclude therefore that Mr. Clubine knew or ought reasonably to have known that this conduct was unwelcome.

244I therefore find that Mr. Clubine sexually harassed the complainant in breach of ss. 5(1) and 7(2) of the Code.

245As one of the two shareholders, principals and directing minds of Telefficiency, I am also satisfied that, despite his denial, Mr. Clubine certainly occupied a position to confer, grant or deny a benefit to the complainant. Holding the position he had makes it difficult to believe that any strong suggestion he made to Mr. Brunet to the complainant's benefit or detriment would not have been considered and acted upon. I find that by making the sexual solicitation Mr. Clubine breached s. 7(3)(a) of the Code.

THE DISMISSAL

246There was no evidence that, other than the actual existence of a probationary period, the complainant was given any kind of warning that failing to show performance on her weekly sales record would result in dismissal. The discussion that she says she had with Mr. Tait was not sufficient, in my view, to bring home to her that her job was in jeopardy. It was quite reasonable in my view that in their discussions she understood him to be praising her qualities.

247However, this does not mean that nothing at all was expected of her. As Mr. Tait explained, each sales representative, including him, was expected to fill out a sheet indicating the number of cold-calls, client visits or sales proposals. It was this sheet that was reviewed when looking at the progress of a new sales representative within the three-month probationary period. Mr. Tait testified that he was concerned himself about what she disclosed in her weekly sales records.

248Although the complainant went through her work efforts and accomplishments in great detail at the hearing, it would appear that very little of it was actually communicated from Mr. Tait to Mr. Demelis when her progress was being discussed.

249I believe that, by the time a meeting took place between Mr. Tait, Mr. Demelis and the other sales manager, the decision to dismiss the complainant had already been made by Mr. Brunet in concert with Mr. Demelis. Although Mr. Brunet may have put his assertion rather highly, it was beyond dispute that the complainant had worked for the company before and had company specific experience, albeit somewhat dated. This does provide some support for expecting more of the complainant than others who were hired at the same time.

250In my view, Mr. Brunet relied on the opinion of Mr. Demelis regarding the complainant's sales efforts. Although Mr. Brunet was aware of a sale made by the complainant for $1,100, he and Mr. Demelis were not aware of the prospecting the complainant had been doing by updating the lead list that she was given by the company. Nor were they aware of her obtaining a business directory or of the proposals to two companies, which included the car dealership the complainant brought in herself. In my view, even though Mr. Brunet testified that it was not just sales figures that were being looked at, if prior to the meeting when her performance was discussed he was aware that the complainant was working on the car dealership transaction, which he described as a good size deal, it might have changed his mind.

251Unfortunately, Mr. Brunet and Mr. Demelis knew extremely little about the complainant and her work when the decision was made. Although Mr. Brunet attempted at the hearing to demonstrate the differences between the sales performance of the complainant and other new hires, I do not believe that such a detailed analysis ever took place at the time the decision was made to dismiss her. If it had, it may have demonstrated that there was not a lot of difference between the sales of the complainant and some others.

252Although he may have made some ill-advised comments about the complainant during this proceeding, I ascribe that to Mr. Brunet's frustration with the process, rather than supporting a finding that this would lead him not to be credible. I also accept that he may have been less than clear in his evidence at times, but this was a result, in my view, of a memory suffering from the lapse of time. I also accept that at times he exaggerated his evidence. However, his position that he was not aware of the interaction between the complainant and Mr. Clubine before the decision to dismiss was made and that Mr. Clubine had no input in the decision was consistent throughout the proceeding. I also believe that he was genuinely surprised to learn at the hearing of the extent of the interaction between the complainant and Mr. Clubine. Unfortunately, he may have let his friendship and his knowledge of Mr. Clubine's typical patterns result in dealing with the demand letter and complaint in a cursory manner.

253In my view, aware that the complainant's probationary term was ending and wanting to make an example of an employee, for reasons unrelated to discrimination, after discussions with Mr. Demelis, she became the unfortunate choice. I find that at the time she was the only employee dismissed. As Mr. Brunet admitted, this did not turn the company's financial fortunes around.

254I am satisfied that Mr. Brunet had no prior knowledge or awareness whatsoever of Mr. Clubine's conduct or sexual interest toward the complainant before the decision to dismiss the complainant was made or implemented. In my opinion, the statement that Mr. Brunet made in his evidence about the benefit of making an example of dismissing one employee to motivate others, saying that it made others aware of the consequences, was his true motivation. Discrimination was not one of the reasons for that decision.

255With respect to one of the most crucial aspects of this hearing, the date that a decision was made to dismiss the complainant, I conclude that the decision was made the day before it took place and before the events at Centro's. This is the evidence of Mr. Brunet and Mr. Tait and I accept it. At the meeting discussing the logistics, it was decided that the complainant would be dismissed the next day, after attending at the knowledge day proceedings, and that until she was dismissed she would be not be [sic] treated any differently. This is why she was introduced as a new employee, only to be dismissed later in the day.

256While I have found that Mr. Clubine could have influenced the decision, I accept the evidence of Mr. Brunet that when the decision was made he was unaware of the extent of the interaction between the complainant and Mr. Clubine. I also accept his evidence that, like Mr. Tait, to his knowledge, Mr. Clubine had no input or role in the decision. In my view, the timing of the decision to terminate supports this conclusion. Had the advance at Centro's been made and rejected and/or the meeting between Mr. Clubine and the complainant taken place before the decision to dismiss the complainant was made, this would have been strong support for an inference that Mr. Clubine had some impact or direct or indirect influence on Mr. Brunet to make a decision to dismiss the complainant, a decision that would have been tainted by discrimination. But I have found this not to be the case.

257In the result I am not satisfied that it has been established that Mr. Brunet breached the provisions of the Code either on the basis of direct or circumstantial evidence. Accordingly, the claim against Mr. Brunet fails.

REMEDY

258Subsection 41(1) of the Code sets out the remedial authority of the Tribunal in this matter. The Tribunal can award public interest remedies and monetary compensation for the loss arising out of the infringement. As set out above, in light of the status of Telefficiency, no remedies were sought against the corporation.

259As I have found that the complainant's dismissal was not tainted by discrimination, or put another way, discrimination was not one of the reasons for her termination, it is not necessary for me to consider the request for a reference letter or her claim for special damages arising from her loss of wages, commissions or otherwise.

In Respect of Compliance and Future Practices

260As it is unclear what, if any, responsibility Mr. Clubine now has for employees, I am not satisfied that having Mr. Clubine attend a training program on anti-harassment approved by the Commission, or providing the Chief Commissioner with a letter of assurance, would be practical or indeed useful in all the circumstances. The result of this case should be sufficient to demonstrate to Mr. Clubine the importance of ensuring that any relationship with an employee beyond the scope of employment is not affected or influenced by a power imbalance and is truly and completely consensual.

General Damages and Mental Anguish

261The Commission and the complainant ask for the same remedies for general damages and damages for mental distress. These are detailed in the pleadings filed by the Commission. General damages in the amount of $20,000 is sought for the infringement of ss. 5(1) and 7(3)(b) of the Code and damages for mental anguish in the sum of $10,000 caused by that infringement. General damages in the amount of $20,000 is sought for the infringement of ss. 7(2) and 7(3)(a) of the Code and damages for mental anguish in the sum of $10,000 caused by that infringement. Pre-judgment interest is sought on these amounts.

262As set out above, I am not satisfied that, in the circumstances of this case, there was a breach of s. 7(3)(b) of the Code. I have found that Mr. Clubine infringed ss. 5(1), 7(2) and 7(3)(a) of the Code.

263I am satisfied that, based on the complainant's evidence, supported in part by the evidence of Mr. Maestro and Mr. Zamir, she suffered mental anguish as a result of the infringement. As set out by Vice-Chair DeGuire in Fuller v. Daoud (2001), 2001 CanLII 26227 (ON HRT), 40 C.H.R.R. D/306 (Ont. Bd.Inq.), a medical report is not necessary to substantiate that claim, although it may have been helpful to the complainant to establish a greater quantum of damages.

264I am also satisfied that the infringement was engaged in by Mr. Clubine wilfully or recklessly, thereby satisfying the two-fold requirement in s. 41(1)(b) of the Code.

265In Sanford v. Koop (No. 2) (2005), CHRR Doc. 05-727 [reported 2005 HRTO 53, 55 C.H.R.R. D/102], Chair Gottheil listed the relevant authorities and the factors and criteria for assessing general damages and damages for mental anguish. In my view, in all the circumstances and considering the factors and criteria set out by Chair Gottheil in his decision, as the discriminatory conduct of Mr. Clubine violated her right to be free from discrimination, damaged her feelings of dignity and self-respect and had a substantial impact on the complainant. I find that the complainant is entitled to the total aggregate amount of $17,500 for general damages and damages for mental anguish. As I have determined that the dismissal of the complainant was not tainted by discrimination, this award accordingly reflects no compensation relating to the dismissal.

266Pre-judgment interest and post-judgment interest on the monetary award shall be calculated based on the rates set under s. 127 of the Courts of Justice Act, R.S.O 1990, c. C.43, as amended ( the "Courts of Justice Act"). Pre-judgment interest shall run from the date of the complaint, being May 27, 1998, to the date of this decision at the rate of 6 percent per annum. Post-judgment interest on the monetary awards is to commence sixty days from the date of this order.

ORDER

267Upon finding that Bill Clubine violated Maria Cugliari's rights under ss. 5(1), 7(2) and 7(3)(a), contrary to s. 9 of the Code,

(1) Bill Clubine is hereby ordered to pay Maria Cugliari:

(a) General damages and damages for mental anguish in the amount of $17,500, along with pre-judgment interest on this amount from May 27, 1998, to the date of this decision at the pre-judgment interest rate of 6 percent per annum.

(b) Post-judgment interest on the award, excluding interest, at the rate as specified under the Courts of Justice Act, to commence sixty days from the date of this order.

(2) The complaint against Michael Brunet is dismissed.