HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natercia Domingues
Complainant
-and-
Ontario Human Rights Commission
Commmission
-and-
Frank Fortino and Graziella Varbaro
Respondents
DECISION
Adjudicator: Kathleen Martin
Indexed as: Domingues v. Fortino and Varbaro
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
Introduction
1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c. H. 19 as amended (“the Code”), by Natercia Domingues (“the Complainant”) alleging that Frank Fortino and Graziella Varbaro (“the Respondents”), infringed sections 5(1), 7(2), 7(3)(a) and 9 of the Code.
2The Respondents have not been participating in the proceeding before the Tribunal. As a result, the Commission, with the consent of the Complainant, requested a written hearing. In an Interim Decision dated February 13, 2007 (Domingues v. Fortino & Varbaro, 2007 HRTO 7), the Tribunal detailed earlier attempts to locate and serve the Respondents in this matter and concluded that the Respondents had been properly served in accordance with the Rules of the Tribunal. In the circumstances, the Tribunal decided that it was appropriate to issue a Notice of Written Hearing. In particular, at paragraph 36 of the Interim Decision, the Tribunal made the following Order:
a) The Tribunal will, subject to paragraphs b. c. and d. below, conduct a written hearing to determine the merits of the complaint.
b) If the Respondents object to proceeding by way of written hearing, they shall no later than February 26, 2007, file with the Tribunal and serve on the other parties, submissions as to why there is good reason not to conduct the proceedings by way of written hearing. In addition, the Respondents should at the same time include submissions as to the appropriate procedures to be followed if, notwithstanding their objections, the Tribunal determines that it is appropriate to hold a written hearing. The Respondents must also, at the same time, serve and file pleadings and provide disclosure in accordance with the Tribunal’s Rules.
c) If the Respondents file submissions set out in paragraph b. the Commission and the Complainant shall have until March 5, 2007 to file and serve any reply to the submissions.
d) Should the Respondents object to a written hearing on the merits, the Tribunal will issue a decision setting out whether the complaint will proceed by written or oral hearing.
e) Should the Respondents fail to provide submissions as set out in paragraph b. above, the Commission and the Complainant shall, no later than March 5, 2007, serve and file all evidence, documents, submissions and argument that they wish the Tribunal to consider in making a decision on the merits of the complaint and any remedy requested. In providing their evidence, the Commission and Complainant should have regard to paragraph 34 above.
f) Should the Respondents fail to provide submissions as set out in paragraph b. above, or participate in the hearing in accordance with this notice, the Tribunal may proceed without the Respondents’ participation and the Respondents will not be entitled to any further notice in the proceeding.
g) This Order shall serve as Notice of Written Hearing.
3Copies of the Interim Decision were sent to all of the parties by Purolator Courier and regular mail. A copy of the Interim Decision was sent to the Respondents at their last known addresses. These addresses had been provided to the Tribunal by the Commission and were the addresses where the Commission had personally served the Respondents on December 12, 2006, with various documents including the Commission’s pleadings, disclosure and letter requesting a written hearing, dated August 8, 2006.
4The Tribunal Registrar advised that the copies of the Interim Decision sent to both Respondents by Purolator Courier were returned to the Tribunal as undeliverable. The copy of the Interim Decision sent by regular mail was not returned. Given that a copy of the Interim Decision has been sent to the last known addresses of the Respondents, the Tribunal is satisfied that both Respondents have been properly served with the Tribunal’s Interim Decision and have failed to file submissions as directed.
5Neither the Complainant nor the Respondents objected to the complaint proceeding by written hearing on the merits within the time limit required by the Interim Decision. In the circumstances, the Tribunal will proceed to dispose of the Complaint by way of written hearing.
6The Commission filed with the Tribunal a copy of the affidavit of the Complainant and its written submissions in accordance with the Tribunal’s Interim Decision. The Complainant did not file any additional material, and as noted above, the Respondents did not file any material. Given the Respondents’ failure to provide any submissions, or participate in any way in this proceeding as directed by the Tribunal, the Tribunal shall make its determination in this matter based only on the materials filed by the Commission.
FACTS
7The Complainant was employed as a sales representative in the retail outlet of Bocci Shoes in the Yorkdale Mall from January 2001 to April 2002. Her annual salary was $17,111.34 per year.
8The Respondents, Fortino and Varbaro, were shareholders of Bocci Shoes and oversaw in-store operations where the Complainant worked.
9Initially, the Complainant had filed her complaint against Bocci Shoes Inc. as well as against the Respondents identified above. However, the Commission decided not to refer the subject matter of the complaint against Bocci Shoes Inc. to the Tribunal on the basis, inter alia, that the company was no longer in business and was bankrupt.
10The evidence establishes that the Complainant was subjected to a pattern of discrimination and harassment in the workplace by the Respondents. The conduct forming the basis of the complaint is as follows:
The Complainant advised that the Respondent Fortino had a habit of greeting female staff with a kiss on the cheek. This practice made the Complainant uncomfortable because he would also place his arm around her waist in an attempt to pull her closer and would kiss her close to her mouth.
On or about April 5, 2002, the Respondent Fortino greeted the Complainant in the manner described above and asked the Complainant when they were going to go out together. The Complainant told him that she did not want to go out with him and that she had a boyfriend. Initially, Fortino responded by saying that “that was okay” and “we don’t have to do anything”. However, Fortino was then joined by the Respondent Varbaro who asked that the Complainant go out and party with them and Fortino then asked when the three of them could have a threesome. The Complainant responded again that she was not interested. Fortino told her that she did not have to do anything right away and she could just think about it. Varbaro responded that “it is always the ones who say no who end up doing it”. The Complainant once again rejected their advancements.
Later on the same date, the Respondent Varbaro approached the Complainant again and asked why she would not participate. The Complainant told her again that it was not something she was interested in but despite her repeated objections, Varbaro persisted saying she would ask the Complainant about it again.
At the end of that day, the Respondents Varbaro and Fortino approached the Complainant again. The Respondent Varbaro said to the Complainant “think about what I said, I am going to give you two more days to think about it.” Fortino smiled and added “two more days,” and then both of them left the store.
On or about April 6, 2002, the Complainant attempted to discuss the matter with two managers who did not take her complaints seriously. However, there was no process to address harassment and discrimination complaints within the workplace.
On April 7, 2002, the Respondent Varbaro again asked the Complainant if she had thought about the proposition and the Complainant again rejected her advances. On her way out that day, the Respondent Varbaro said, “I’m going to give you just one more day to think about it.”
On April 8, 2002, the Respondent Fortino tried to kiss the Complainant’s cheek and placed his arm around her, squeezing her close to him. On the same date, the Respondent Varbaro asked again if the Complainant had thought about what she had said and the Complainant responded again that the answer still had not changed, that she had a boyfriend and did not do those kinds of things. Varbaro continued to say, “come on, Trish, let’s go”.
At the end of the evening on April 8, 2002, the Respondent Fortino approached the Complainant with a lollipop in his mouth, took it out, and pointed it at the Complainant’s genitals stating, “I want to take this lollipop and stick it in there and twist it around. I just want to put it in there.” Fortino then tried to put his arm around the Complainant’s shoulder, ignoring her objections. The Complainant states that she was distraught and told Fortino that she thought his behaviour was sick. Fortino then put the lollipop back into his mouth.
On April 12, 2002, the Complainant was cornered by Varbaro and Fortino at the back of the store during her shift. Fortino placed his arm around the Complainant’s shoulders, pinning her from the front in a headlock, with his elbow wrapped around the back of her neck. At the same time, Varbaro came up to the Complainant from the rear and sandwiched the Complainant between Fortino and herself, reaching her arms around the Complainant toward Fortino. Both Fortino and Varbaro then began to rub their lower bodies against the Complainant. The Complainant yelled out and was able to get away when another manager looked into the back room.
11The conduct engaged in by the Respondents was not solicited, encouraged or condoned by the Complainant. Indeed, the Complainant directly told the Respondents that she was not interested in the propositions they were making and as matters escalated, the Complainant clearly expressed to Fortino that she viewed his conduct as objectionable in her characterization of it as “sick”.
12The Complainant states that the incident on April 12, 2002 was the last straw for her and she felt very frightened. She stated that she could not go back to work after this incident as she was being constantly harassed by Fortino and Varbaro. She stated that she “feared further assaults”.
13The Complainant describes that her experience at Bocci Shoes has had a serious impact on her mental and emotional state. She describes her condition as follows:
I was completely non-functional for the first six months following my resignation. As a result of the harassment and discrimination, I have felt helpless, beaten down and depressed. I could not sleep and lacked the motivation to look for new employment, as I feared further discrimination from future employers.
14The evidence indicates that it was not until approximately six months following her resignation that the Complainant “gained the motivation needed to start looking for new employment”. She states that she applied for numerous sales positions at various retail stores but was unsuccessful in her job search. The Complainant did not gain employment until the fall of 2002, when she found employment as a receptionist. However, the Complainant indicates that her employment was terminated after six weeks because she was late for work most of the time because she had difficulty sleeping due to depression and anxiety and when she was there she was unable to smile enough for a front desk position.
15According to the Complainant, her experience with the Respondents continued to hinder her ability to hold on to meaningful work for several years. The Complainant states that she is still suffering as a result of the experience and continues to “feel ashamed and vulnerable”.
DECISION
16The relevant provisions of the Code provide as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of orgin, colour, ethnic orgin, citizenship, creed, sex, sexual orientation…
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.
(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;
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10.(1) In Part I and in this Part,
“harasssment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
17The Tribunal finds no reason to doubt the uncontradicted evidence before it concerning the harassment and discrimination suffered by the Complainant in the period leading up to her resigning her employment. In the circumstances, the Tribunal finds that both Respondents have violated the Complainant’s rights under the Code.
18The Respondent Fortino made comments and engaged in conduct as detailed above which he clearly knew or ought to have reasonably known to be unwelcome. The Tribunal finds that the comments and conduct detailed above constitutes sex discrimination and sexual harassment within the meaning of section 5 (1) and 7 (2) of the Code and a breach of section 9 of the Code. Further, the Respondent Fortino by his conduct and comments beginning on April 5, 2002 and continuing until the Complainant left her employment on April 12, 2002 made a series of sexual solicitations or advances which he knew or ought reasonably to have known to be unwelcome. Given the role of the Respondent Fortino as a shareholder and as someone who oversaw operations of the store on a daily basis, Fortino was a person in a position to confer, grant or deny a benefit to the Complainant as an employee in the store. Accordingly, the Tribunal finds that the Respondent Fortino has violated sections 7(2) (a) and 9 of the Code.
19The Tribunal makes the same findings with respect to the Respondent Varbaro. The Respondent Varbaro also engaged in conduct which she knew or ought to have known to be unwelcome. The Tribunal finds that Varbaro’s comments and conduct constitutes sex discrimination and sexual harassment within the meaning of section 5(1) and 7 (2) of the Code and a breach of section 9 of the Code. Further, the Respondent Varbaro by her conduct and comments commencing on April 5, 2002 and continuing until the Complainant left her employment on April 12, 2002 made a series of sexual solicitations or advances to the Complainant which she knew or ought to have known to be unwelcome. The Respondent Varbaro held a similar position to Fortino in the now bankrupt store, and accordingly, was also a person in a position to confer, grant or deny a benefit to the Complainant, as an employee in the store, and therefore also violated sections 7(2)(a) and 9 of the Code.
20While there was some different conduct attributed to each of the Respondents, the evidence also reflects that they acted in concert for the most part including in respect of the most egregious conduct - the incident that took place in the back room of the store on the Complainant’s last day of work. In the circumstances, the Tribunal finds the Respondents jointly and severally liable for the remedies set out below.
21The Tribunal finds that the actions of the Respondents made the workplace intolerable for the Complainant. In the words of the Complainant, she could not return to work after the last incident on April 12, 2002 because she was being constantly harassed by Fortino and Varbaro and “feared further assaults”. The Tribunal finds that the Complainant’s resignation was not voluntary and that the comments and conduct of the Respondents were the direct cause of the Complainant’s loss of employment.
22The Tribunal further finds that the actions of the Respondents caused the Complainant’s subsequent loss of income, at least in part. The affidavit evidence in support of this claim is contained at paragraphs 13 through 15 above. This evidence indicates that the Complainant was completely non-functional for the first six months following her resignation. The evidence also indicates that the Complainant felt helpless, beaten down and depressed; could not sleep; and lacked motivation to look for new employment. The evidence further indicates that the Complainant was only motivated to seek employment after six months, but even once employed, she continued to experience difficulties. According to the Complainant, her experience at Bocci Shoes continued to have an impact on her and hinder her ability to hold on to meaningful work for several years.
23On the basis of this evidence, the Tribunal accepts that the harassment and discrimination suffered by the Complainant had an immediate and ongoing impact on her mental and emotional state. Moreover, the Tribunal accepts that the Complainant was initially unable to look for employment because of her mental and emotional state for a period of six months. However, the Tribunal has difficulty in fully accepting the severity of impact claimed, including the evidence that the Complainant was “completely non-functional”, on the basis of the general evidence given and the absence of any evidence that the Complainant sought medical or other treatment from a professional. In making this finding, the Tribunal is not suggesting that it does not believe the Complainant, but only that the Tribunal would generally expect that a claim of this nature would be supported by additional or more detailed evidence than that presented in the hearing.
REMEDY
24The Commission has requested a number of remedies including general damages, damages for mental anguish, special damages, interest and public interest remedies. The Tribunal grants the remedies in part although the Tribunal finds it appropriate to make different awards in respect of certain remedies from those requested.
GENERAL DAMAGES
25The Commission seeks an award of $30,000.00 in general damages for breach of the Complainant’s rights under the Code. In support of its position, the Commission submits that there is no ceiling on general damages awards and the Tribunal has cautioned against making such awards too low, since doing so could trivialize the importance of the Code by effectively creating a sort of license fee to discriminate. In this respect, the Commission relies on Ontario (Human Rights Commission) v. Shelter Corp. 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297 at para. 43 (Div.Ct.).
26The Commission also argues that where two respondents have been found to have infringed a right of the complainant, each respondent can be ordered to pay monetary compensation (Moffat v. Kinark Child and Family Services (No.5)(1999), 1999 CanLII 35166 (ON HRT), 36 C.H.H.R. D/346 at paras.30 and 32 (Ont.Bd.Inq.).
27The Commission states that the factors that are generally considered in determining the quantum of general damages are:
Humiliation experienced by the complainant
Hurt feelings experienced by the complainant
A complainant’s loss of self respect
A complainant’s loss of dignity
A complainant’s loss of self-esteem
A complainant’s loss of confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive treatment
(Sanford v.Koop, 2005 HRTO 53 at para.35)
28In the circumstances of this complaint, the Commission argues that an award of $30,000.00 is justified because of the humiliating and degrading events suffered by the Complainant as recounted in her affidavit, especially given that the Complainant has still not fully recovered from the experience.
29The Commission has correctly summarized the general principles applicable to making an award for general damages including its reference to applicable factors. However, after applying the factors set out in paragraph 27 above to the evidence in this case, the Tribunal finds it appropriate to award a different amount of general damages.
30The Complainant was clearly subjected to inappropriate behaviour by the Respondents, although the evidence indicates that the conduct was of short duration occurring over four days. The conduct was primarily verbal although it culminated in a serious incident on April 12, 2002 where the Complainant was pinned in a headlock and the Respondents rubbed their lower bodies against her. While the Complainant objected throughout, the bulk of the evidence concerning the impact on the Complainant relates to the period following this incident. As noted above, this evidence does reflect that the Respondents’ conduct had an immediate and ongoing impact on the Complainant’s mental and emotional state, although there is brevity to the description provided that prevents the Tribunal from fully accepting the severity of the impact. Again, the Tribunal is not suggesting that it disbelieves the Complainant, but only that additional evidence would have been of assistance in establishing the severity of impact claimed.
31The Tribunal is also cognizant of its jurisprudence in other cases involving similar findings. While the Commission did not rely on specific cases as comparators, reference was made to the Tribunal’s decision in Sanford, supra. In Sanford, the Tribunal ordered general damages of $25,000.00 in circumstances of harassing and discriminatory behaviour occurring over approximately two years, involving verbal and multiple incidences of physical conduct, with the Complainant suffering deep psychological and physical effects.
32Considering the Tribunal’s findings in this complaint and bearing in mind its jurisprudence, the Tribunal finds it appropriate to award the Complainant $15,000.00 in general damages.
DAMAGES FOR MENTAL ANGUISH
33Section 41(1)(b) of the Code provides that the Tribunal may award damages of up to $10,000.00 for mental anguish, where such infringement has been engaged in wilfully or recklessly.
34In its submissions, the Commission indicated that the factors generally considered in determining the quantum of an award for mental anguish are the following:
The immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health e.g. distress during employment, episodes of crying, sleeplessness, fearfulness, inability to pursue or resume regular activities
The ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health, i.e. impact on personal and professional life, lack of trust in employment relationships
Vulnerability of the complainant – e.g. age
Objections to the offensive conduct
Knowledge on the part of the respondent that the conduct was not only unwelcome but viewed as harassment or discrimination
Anxiety caused by the conduct
Frequency and intensity of the conduct
Sanford v. Koop, supra at para. 38
35The Commission states that given the immediate and continuing effects on the Complainant of the reckless, and indeed intentional, actions of the Respondents, an award of $10,000.00 is reasonable. The Commission notes that the Complainant had to resign to escape the harassment, and the Respondents would not back down even after being told to stop.
36The Tribunal finds that the conduct of the Respondents was wilful and reckless since the Respondents repeatedly harassed the Complainant knowing that she objected to their comments and conduct. Moreover, the Tribunal finds that the Respondents’ conduct impacted on the Complainant’s mental and emotional health such that the Complainant experienced mental anguish. In this respect, the Tribunal accepts that fear felt by the Complainant and her resulting symptoms of being unable to sleep and being depressed qualifies as mental anguish, although as indicated above, the brevity of the evidence precludes the Tribunal from fully accepting the severity of impact which may have justified a higher claim.
37In the circumstances, the Tribunal finds it appropriate to order $5,000.00 in damages for mental anguish.
SPECIAL DAMAGES FOR LOST WAGES
38The Commission also seeks special damages equivalent to six months lost wages. The specific request is for $8,555.67, which represents one half of the Complainant's annual salary from her first year of employment at Bocci Shoes as reflected on the Complainant's T4 for the year 2001, which was filed as an exhibit in the hearing.
39In support of its request for six months wages, the Commission relies on the Complainant's affidavit that recounts that as a result of the sexual harassment, the Complainant felt helpless, beaten down and depressed and only found the motivation to look for work after six months. The Commission further notes that the Complainant continued to have difficulty keeping a job even once employed again because of the continuing effects of the harassment, and as a result the request for six months wages, which only represents a portion of the period, is reasonable.
40In awarding special damages, the applicable principle is to place the Complainant into the position that she would have been in had the discriminatory acts not occurred. In this case, the evidence indicates that the Complainant involuntarily resigned her employment of over a year because of the harassment and discrimination perpetrated by the Respondents. The evidence also indicates that the Complainant felt helpless, beaten down and depressed and only found the motivation to look for employment after six months. While the Complainant also described that she continued to be hindered in her ability to hold onto meaningful work for several years, there is no claim for compensation for this period. In the circumstances, based on the evidence and submissions made, the Tribunal finds it is appropriate to order the requested amount of six months lost wages.
Pre- and Post- Judgment Interest
41The Commission requests pre-judgment and post-judgement interest on all amounts in accordance with the Courts of Justice Act, R.S.O. 1990, c. C43.
42The Tribunal finds it appropriate to award pre-judgment and post-judgment interest on all monetary amounts awarded herein. Pre-judgment interest shall run from the date of the complaint. Post-judgment interest shall run from 10 days following the date of this Decision. The rates for each shall be in accordance with Section 127 of the Courts of Justice Act, supra.
Public Interest Remedies
43The Commission also seeks public interest remedies in this case pursuant to the broad statutory authority of the Tribunal under Section 41(1)(a) of the Code. In this respect, the Commission relies on Morrison v. Motsewetsho where the Tribunal stated that public interest remedies are of particular importance when “[The respondent’s] complete lack of inclination to participate in [the] proceeding … causes the Tribunal to conclude that [the respondent] does not take the law, or his violations of it, seriously,” (Morrison v. Motsewetsho (No.2) (2003), 2003 HRTO 21, 48 C.H.H.R. D/51 at para. 224 (Ont. Bd.Inq.).
44In light of the evidence in this case, and in particular, the fact that both Respondents carried on their harassing behaviour knowing it was unwelcome, the Tribunal makes the following requested public interest remedies:
(i) An order that within three months of the Tribunal’s Decision, both Respondents attend an anti-discrimination and anti-harassment workshop.
(ii) An order that the Respondents provide the Commission with written confirmation and proof that they have attended such training within a month of its completion.
ORDER
45In view of the above, the Tribunal makes the following Orders:
(i) Within 10 days of this Order, the Respondents, Graziella Varbaro and Frank Fortino, shall pay to the Complainant, Natercia Domingues, on a joint and several basis, the following amounts:
a) General Damages in the amount of $15,000.00
b) Damages for mental anguish in the amount of $5,000.00
c) Pre-judgment and post-judgment interest in accordance with the Courts of Justice Act, supra, on all monetary awards. Pre-judgment interest to run from the date of the Complaint. Post-judgment interest to run from 10 days following the date of this Decision.
d) Special damages in the amount of $8,555.67
(ii) Within three months of the Tribunal’s Decision, the Respondents’ Frank Fortino and Graziella Varbaro, shall attend an anti-discrimination and anti-harassment workshop.
(iii) Frank Fortino and Graziella Varbaro shall provide the Commission with written confirmation and proof that they have attended such training within a month of its completion.
46The panel of the Tribunal will remain seized with respect to any dispute regarding the implementation of the Order for a period of 12 months.
Dated at Toronto, this 29th day of June, 2007.
Kathleen Martin
Member