HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Chard

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Stewart Newton

Respondent

DECISION

Adjudicator: David A. Wright

Date: October 19, 2007

Citation: 2007 HRTO 36

Indexed as: Chard v. Newton

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@ontario.ca Website www.hrto.ca

APPEARANCES

Julie Chard, Complainant ) Deirdre McDade, Counsel

Ontario Human Rights Commission ) Anthony Griffin, Counsel

Stewart Newton, Respondent ) On his own behalf

INTRODUCTION

1In this complaint, Julie Chard alleges that Stewart Newton, a sales representative, sexually harassed her while she worked as an assistant at a real estate office. The harassment, she says, took three forms – sexually inappropriate jokes and comments, references to women in derogatory terms, and sexual touching on two occasions. Mr. Newton acknowledges that he made sexual jokes, but argues that they must be seen in the context of the atmosphere of the office at the time. He denies the other allegations. He argues that Ms. Chard has been influenced to make these unfounded allegations by his former business partner for inappropriate motives. He also states that by signing a document presented to her by her employer following the making of the initial allegations, Ms. Chard has waived her right to pursue this complaint.

2Ms. Chard filed the complaint with the Commission on February 27, 2004. The Commission referred the complaint as against Mr. Newton to the Tribunal on December 13, 2005. Following mediation in November of 2006, three unreported decisions regarding pleadings and other procedural matters, and an adjournment of scheduled hearing dates in June of 2007, the Tribunal convened the hearing in Kingston on August 27 and 28, 2007. The August 27 hearing was very brief, since the Complainant did not appear and I granted an adjournment until the next day. I was subsequently advised that she had been mistaken as to the start time. Three witnesses testified on August 27: Ms. Chard, D.R. (the other agent working in the office), and Mr. Newton. The Commission called Ms. Chard and D.R., and Mr. Newton testified on his own behalf.

3For the reasons set out below, I find that the Commission and the Complainant have proven on a balance of probabilities that the touching and sexual jokes and comments occurred, and that the Respondent accordingly violated s. 7(2) of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). They have not met their burden to prove the allegations of references to women in derogatory terms. I find that the document signed by the Complainant did not remove her legal right to bring this complaint against Mr. Newton and that her motives are irrelevant. I award $10,000 in general damages and $6,000 for mental anguish as requested by the Commission and the Complainant.

THE HEARING AND THE EVIDENCE

A. General

(i) Use of Initials

4D.R., who was the other agent in the real estate office where Ms. Chard worked and Mr. Newton’s business partner, asked that I refer to her by her initials in this decision and I have done so. I have kept her name private in particular because of the nature of various assertions about her private life made by Mr. Newton, many of which she was not confronted with in cross-examination.

5At the outset of the hearing, Mr. Griffin, counsel for the Commission, noted that while the original complaint had also named the real estate company and the general manager of the office (W.S.) as Respondents, the Commission did not refer the complaint against them to the Tribunal. He submitted that since the complaint against these parties was not referred, the Tribunal should not to make any findings against them and should avoid identifying them in its decision (see York Advertising Ltd. v. Ontario (Human Rights Commission), [2005] O.J. No. 1808). The Complainant and Respondent agreed and accordingly, this decision does not identify the company or the general manager by name.

(ii) Witnesses Not Called By the Commission

6During the hearing, the Respondent expressed concern that the Commission did not call Marilyn Sandford or the general manager (W.S.) as witnesses, because in his view their evidence was important to his case. He also wanted to introduce statements they made during the Commission investigation.

7During the pre-hearing conference call, Commission counsel had stated that the Commission would call Ms. Sandford and might call W.S. Prior to the hearing, the Commission provided the Respondent with a will say statement for Ms. Sandford but not one for W.S. At the hearing, Mr. Griffin advised that Ms. Sandford had been issued a subpoena requiring her to attend to give evidence on August 28, 2007, but she did not appear. He also said that the Commission decided not to call W.S. and for this reason, did not provide a will say. Mr. Griffin wished to proceed without their evidence.

8I ruled that the statements of these witnesses made during the Commission investigation were not admissible (see, for example, Giguere v. Popeye Restaurant, 2007 HRTO 26 and the unreported decision in this matter dated May 1, 2007), but that I would grant an adjournment to permit the Respondent to subpoena these two witnesses to testify on another hearing date. Mr. Newton said that he did not want an adjournment and would proceed with the witnesses that were present.

(iii) The Respondent’s Evidence

9Mr. Newton chose to give his evidence-in-chief by reading a letter that he had sent to the Commission during the investigation process, and the other parties did not object. This was entered as an exhibit. Although I told him that it would be of much more assistance to me in resolving the issues of credibility to hear his version of events in his own spontaneous words, he chose to proceed by reading his letter. He did give some evidence that was not in this form, including answers to questions on cross-examination and several questions I asked, but I did not hear his full version of events through testimony in the usual manner as a result of his choice.

B. Julie Chard’s Employment

10Julie Chard was hired to work as secretary at a real estate office in Marmora, a small town of about 2,000 people, at the end of July of 2003. The Marmora office, located in D.R.’s house, was a part of a company that had several offices. The only people who worked in the office were the two agents, Mr. Newton and D.R., and Ms. Chard. Ms. Chard worked five days per week, between four and eight hours per day. She was responsible for supporting the agents through tasks such as computer data input, preparation of forms, and booking of appointments. Ms. Chard left this employment in December of 2003.

C. Sexual Jokes and Comments

(i) Ms. Chard’s Evidence

11Ms. Chard testified that between July and September, 2003, Mr. Newton made sexual jokes that degraded women almost every day. She referred in particular to a “blonde joke” that he made that referred to “blow jobs”. She said that she told him each time he made such a joke that she did not appreciate them. When she challenged him on this conduct, he would laugh and turn and walk away or sometimes throw his hands up in the air and come back like nothing happened.

12Ms. Chard also testified that Mr. Newton had made a remark suggesting that she, D.R. and Mr. Newton have a “threesome”. She said that this happened when she made a remark about going to the Marmora Fair. She said that he talked about the pleasure that he would give both of them. When the Respondent put to her in cross-examination that the remark that had been made when she talked about going to the Marmora fair was about them having an “affair”, she insisted that he had talked about them having a “threesome” at that time.

13In cross-examination, Mr. Newton told Ms. Chard that he did not remember her telling him not to make such comments. She reiterated that she had done so consistently.

(ii) D.R.’s Evidence

14D.R. testified that Mr. Newton made comments about women and about how she looked and dressed, but did not remember comments about sex. She could not remember the details of the comments that he made. She said that when she asked him to stop, he would get upset, go home, or go for a drive.

(iii) Mr. Newton’s Evidence

15Mr. Newton acknowledged that he made various kinds of jokes in the office, including sexual and religious jokes. He said he could not say how often he made sexual jokes. He acknowledged suggesting that the three of them have an “affair” when Ms. Chard talked about going to the fair. In retrospect, he felt this was a “stupid” joke. He denied making the threesome comment and stated that he would never have said that he could give both women pleasure.

16He focused on the atmosphere in the office. He said that there was constant discussion in the office about sex and their own sexual lives by D.R. and a former assistant (not Ms. Chard) and he gave other evidence about D.R.’s sexual history.

D. References to Women In Derogatory Terms

17Ms. Chard testified that Mr. Newton regularly referred to the women in the office as “bitches” and “cunts”. She said that when he did so, she felt upset and degraded. She said that she had seen D.R. send him home because of his choice of words. She said that each time he said it she would ask him not to use those terms. He would get angry and leave and come back like nothing had happened.

18In cross-examination, Ms. Chard reiterated that she heard Mr. Newton say “women are cunts” and that she heard him refer to D.R. as a “cunt” and a “bitch”. She denied that D.R. had told her to make this allegation.

19Mr. Newton denied referring to women as “cunts”. In his pleading, he stated that “cunt” was “a [D.R.] word” and that she had made another accusation about someone using that word in reference to her. He said that he had used the word “bitch” in the context of a bad joke.

E. The Two Alleged Touching Incidents

(i) Ms. Chard’s Evidence

20Ms. Chard testified in chief that when she was standing at her desk behind her chair, Mr. Newton was going to the filing cabinet, and as he passed her he ran his hand across her bottom. He said, “Oh, I shouldn’t have done that” and walked on. She said that he laughed, walked out and gave her a look that suggested to her that he could do what he wanted to.

21She testified that she did not tell D.R. about this incident because she hoped it would not happen again. She did not tell her husband because she was afraid that he would go looking for Mr. Newton in anger and end up in jail. She had never had anything like this happen to her. She did not inform the police because she lives in a small town and did not want anyone to know.

22Ms. Chard testified that a few days later, when she was sitting at her desk doing work, Mr. Newton came up behind her. His hand went on her shoulder and went down and landed on her breast. She leaned forward and he pulled his hand out. She said that he made a comment like “Oh, did I do that?” with a smirk and a giggle. She got up, started to cry and grabbed her purse and left.

23Ms. Chard testified that at this point she was in tears and in shock. She was so upset that she pulled her car over to the side of the road. She was particularly worried about what her husband might do if he found out, and the possible consequences for him. She sat, collected herself and then drove home.

24On or about September 12, 2003, D.R. asked her what was wrong and said that she had been acting strangely. Ms. Chard told her about both touching incidents. D.R. informed the general manager, W.S., who asked Ms. Chard to write a statement, which she did. It reads as follows:

I Julie Chard on this day Sept. 12, I am giving a statement about an insident [sic] that happened with Stewart Newton. Roughly a week an [sic] a half ago, I was at work in the Marmora office when I was standing at the table going through files, when Mr. Newton as he was walking by ran his hand across my buttocks and made a verbal noise of mmmm and he just looked at me and laughed and proceeded out of the office. A few days later I was sitting at my desk at work working on the computer when Mr. Newton came up behind me, he put his hands on my shoulder, and with one hand he proceeded to go down my top. I lend [sic] forward and he took his hand out and laughed and said “what was that all about” I shouldn’t have done that, and I said no you shouldn’t have. And he walked out. That was the physical harrasment [sic], and then there was the verbal harrasment [sic], talking about sex, alot of inappropriate statements.

25Later that day, her husband found out what had happened when the general manager called and D.R. and D.R.’s husband came to Ms. Chard’s house to talk about the events. He was very angry that Ms. Chard did not tell him about the events sooner.

26In cross-examination, Mr. Newton confronted Ms. Chard with the fact that in her complaint, she had stated that he made the “I shouldn’t have done that” comment after touching her breast, while in her evidence-in-chief she said that he made that statement after touching her buttocks. He also noted that she did not refer to the alleged “mmmm” sound after the buttocks-touching incident. Ms. Chard stated that she had made a mistake in her evidence-in-chief because she was nervous, and that in fact Mr. Newton had said “mmmm” after he touched her buttocks.

(ii) Mr. Newton’s Evidence

27Mr. Newton acknowledged that he had his hands on Ms. Chard’s shoulders “hundreds of times” while instructing her when she was typing on the computer. He denied touching or attempting to touch her buttocks and breast as alleged. He stated that this was not something he would ever do and emphasized his belief that D.R. had encouraged Ms. Chard to make the allegations. He acknowledged that he had massaged her shoulders and back and that this was unwelcome. He stated that it was possible that he had touched Ms. Chard’s buttocks by accident and said “mmmm” in exasperation. He stated that the room was very small, and that it was possible that this happened because the desk was 3 feet 2 inches from the door and he would have had to squeeze past Ms. Chard.

28Mr. Newton stated that on September 11, 2003, he had questioned Ms. Chard’s work performance in several ways. He said that Ms. Chard left the office without saying goodbye. He said that he then went on a call with D.R. and that on the way back, her son “flagged them down” and said he wanted to talk. The three of them went for a beer. As they were leaving the restaurant, D.R.’s son asked his mother to ride with him, rather than Mr. Newton. He told Mr. Newton that Ms. Chard’s husband, Herb, had “lost it again”. Mr. Newton assumed that Herb was angry with him for yelling at Ms. Chard. When he arrived back at the office, D.R. yelled at him for putting his hand on the Complainant’s skirt or trousers.

29Mr. Newton emphasized that Ms. Chard’s allegation had changed in various ways since it was made. He stated that the allegation had changed from him putting his hand down her “top” to “blouse” and from her turning around to him turning around.

F. Events Following the Disclosure to D.R.

30Mr. Newton testified that he was confronted about the allegations by the general manager, W.S., and that he denied the touching allegations, although he admitted touching and massaging her shoulders. He also acknowledged that he used foul language and made inappropriate comments. He testified that he was required to stay away from the office after September 12, 2003, for about a week. Mr. Newton stated that he was ordered by the company to attend six weeks of counselling, and make an apology or else lose his job.

31On September 18, 2003, Ms. Chard, Mr. Newton, D.R., the general manager (W.S.), and one of the two co-owners of the company attended a meeting on the back deck of the home office. At this meeting, W.S. and the co-owner apologized to Ms. Chard, asked how she was, and asked again what had happened. Mr. Newton apologized to Ms. Chard. During the meeting, Ms. Chard signed a document that reads as follows:

I, Julie Chard confirm that my statement and accusations made to [W.S.] on September 12, 2003 have been dealt with in a satisfactory manner.

I affirm that I am satisfied with the resolution made and the actions taken by the company to come to this resolution.

I have no further complaints or concerns regarding the issues stated in my fax dated September 12, 2003.

32Ms. Chard testified that her she was told by the co-owner that she was signing to acknowledge that a meeting had taken place that day. She implied that she did not read the document before signing it. She denied Mr. Newton’s suggestion on cross-examination that the general manager explained the document in detail before she signed.

33The general manager, W.S., sent Mr. Newton a letter dated September 18, 2003, which read as follows:

Further to our meeting today, and our previous meeting of September 12, 2003, I confirm that you have acknowledged that your conduct has been inappropriate. You acknowledged that you have made suggestive or offensive remarks, or innuendoes of a sexual nature, in the presence of our female staff. You further acknowledge that you have been involved in unwelcome physical contact with our female staff. The allegations made were that you touched one of our female employee’s [sic] behind, and that you touched her shoulder and proceed [sic] to put your hand down her top. You deny touching her behind, you deny placing your hand down her top, but you acknowledge placing your hands on her shoulders.

You agree that this situation is serious and you consent to attend sexual sensitivity counselling on a bi-weekly basis, from October 1, 2003 until December 31, 2003 inclusive. During this period, you should earnestly consider your responsibility for the immediate improvement in your performance. We expect you to meet the standard of The Ontario Human Rights Commission “policy on sexual harassment and inappropriate gender related comments and conduct”. I have provided you with a copy of the above-mentioned policy. You are expected to read this policy and comply with its contents.

Ongoing reviews will be conducted to ensure that you meet and maintain satisfactory performance levels. Should you fail to meet and maintain this standard you will be dismissed for cause.

If any of the above is incorrect or not understood by you, contact me immediately by letter detailing that which you did not agree with or understand.

A copy of this letter will be placed in your personnel file.

34All three witnesses agreed that after September 18, 2003, Mr. Newton did not make any sexual or degrading comments or jokes or touch Ms. Chard. Ms. Chard testified that she was, nevertheless, uncomfortable during the remaining time she worked in the office. She said that she focused on the location of the door so she could get out if she had to.

35Mr. Newton stated that he attended the counselling sessions as required, but that he did not get much out of the first four sessions because he was too angry, feeling that he had been used.

G. Other Evidence About The Events In Question

36Mr. Newton placed considerable emphasis on various aspects of the context of the complaint. He suggested that the complaint was not brought “with the spirit sexual harassment complaints are meant to represent” because the purpose was financial gain and revenge by D.R. He emphasized the stormy nature of his business partnership with D.R., which has now ended.

37He also made various allegations about the “character” of Ms. Chard, and his statement included the following:

If you are going to call this an office then there was swearing, very foul language, sex, nudity, drinking, smoking, parties, marriage break up 7 or 8 times, adultery, family arguments, company galore, games for control, pill popping, as many as 4 living in, at a time.

You should know: If someone did not either enter into, or turn a blind eye to this environment, they would not have stayed more than one day.

38D.R. testified about two incidents during the summer of 2003 involving her and Mr. Newton. She stated that on one occasion he came upstairs while she was sleeping and tore the covers off her. She screamed and told him he was never allowed upstairs again. She also testified that while they were driving he reached over and grabbed her breast. She said she called the police about this.

39In cross-examination of D.R., Mr. Newton asked her whether she had put his hand on her breast. She denied this. He also stated that he pulled the blankets off her to wake her up because she had stated she did not want him yelling to wake her up.

H. Impact on Ms. Chard

40Ms. Chard testified that the events had a significant impact on her marriage and family life. Her husband was angry that she did not tell him, because he wanted to protect her. They stopped talking, sleeping in the same bed, and doing the things they used to do. It was particularly hard on her son, who heard them fighting and could not understand why his mother was crying.

41She testified that as a result of the events she took medication for nausea and headaches both before going to work and at other times. She had difficulty sleeping, in particular because she was not sleeping in the same bed as her husband.

42She testified that as a result of these incidents, she is now leery of men other than those in her family. She makes sure her back is to a wall and that she sees what is going on around her, and she is jumpy.

43Ms. Chard also testified that she has seen Mr. Newton in the grocery store in Marmora. When this happened she turned down a different aisle to make sure he was gone, worried about what might happen or what he might say. She felt sick to her stomach and waited until he left before continuing. In cross-examination, she denied speaking with Mr. Newton in a grocery store shortly before the end of 2003.

ANALYSIS

A. Findings of Fact

(i) General Approach to Credibility Determinations

44As a result of the conflicting versions of the principal events given by Ms. Chard and Mr. Newton, I am required to resolve issues of credibility in order to make findings of fact. The approach to determining credibility was set out by Tribunal Member (now Vice-Chair) Joachim in Nassiah v. Regional Municipality of Peel Police Services Board, 2007 HRTO 14 at para. 52:

Their dramatically differing accounts cannot be reconciled by fading memories, confusion or mistake. Someone is not telling the truth. In assessing the evidence I have used the traditional test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (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 is 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.

45In resolving the credibility issues, it would be inappropriate to consider the issue of Ms. Chard’s “character”, the allegations about D.R.’s sexual history, or the alleged context in the office. In the criminal context, the Supreme Court has cautioned against relying upon myths or stereotypes about women in sexual assault cases, including stereotypes that “bad” women are more likely to consent or be untruthful: see R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 83 D.L.R. (4th) 193 at p. 258, per McLachlin J. and at pp. 208-21, per L’Heureux-Dubé J., dissenting; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at p. 520. In dealing with sexual harassment cases, the Tribunal must be equally vigilant to ensure that it does not make decisions based upon outdated or discredited stereotypical assumptions about sexual harassment. To accept the implicit suggestion that Ms. Chard is more likely to lie about having been touched because of allegations about her “character” would be to do just that, as would any determinations about D.R.’s credibility based upon her alleged sexual history.

46Finally, I note that in making the credibility determinations, I have not relied upon the evidence of D.R. She was evasive in her answers to questions and had little memory of the details of events in the office at the time, particularly as they related to the interactions between Ms. Chard and Mr. Newton.

(ii) The Touching Incidents

47The principal factual dispute turns on whether the two touching incidents happened, as alleged by Ms. Chard, or did not, as Mr. Newton testified. I find that, on the balance of probabilities, both events occurred.

48I note, first, that both Ms. Chard and Mr. Newton have maintained consistent versions of the essential aspects of the events since the allegations were made. The statement given by Ms. Chard on September 12, 2003, and Mr. Newton’s version as recorded in W.S.’s letter of September 18, 2003, are consistent with their testimony. In making this finding, I accept Ms. Chard’s statement that her confusion between the two incidents in her evidence-in-chief was the result of nerves and being in the same room with Mr. Newton.

49I found Ms. Chard’s testimony forthright and credible. She acknowledged when she did not remember something and did not exaggerate. She appeared to be genuinely angry and hurt as she talked about the alleged violation of her bodily integrity. It was clear that from the beginning it was not in her interest to make these allegations public because she feared (correctly, as it turned out) the reaction of her husband. She only made the allegations after D.R. noticed the emotional difficulty she was having in the days following the second incident.

50Mr. Newton, in contrast, was reluctant to directly address the issues. After being sworn in, he insisted on reading his statement rather than speaking about the events in his own spontaneous words. It was only after I directly asked him whether the incidents took place that he denied that they occurred. His evidence and answers focused on the activities of others, in particular D.R., and attempted to suggest to the Tribunal that she was not worthy of belief because of her sexual history.

51Mr. Newton’s evidence showed that he did not observe or understand appropriate boundaries of physical contact with a female co-worker. He agreed that he had touched Ms. Chard’s shoulders many times and that he had massaged her back without her asking him to do so. He stated that he “had to” do so in order to assist her in working with the computer. No supervisor is required to touch a subordinate to instruct her. His failure to respect this boundary shows Mr. Newton’s willingness to engage in inappropriate physical contact with Ms. Chard.

52I do not accept the Respondent’s theory that Ms. Chard made the allegations because he had criticized her work performance twice on the day in question. He has given very little detail or context surrounding the alleged criticism of her performance and there is no reason to infer that minor criticism of her performance would lead to her making these allegations at such cost to herself.

53Accordingly, I find that in September of 2003, Mr. Newton touched Ms. Chard’s buttocks and on another occasion touched her breast.

(iii) Sexual Jokes and Comments

54Mr. Newton has admitted that he made the “affair” comment. He has admitted to making other sexual jokes and comments to Ms. Chard. I accept Ms. Chard’s evidence that such jokes and comments were made on a regular basis and that she told Mr. Newton that she did not want him to do so.

55While I recognize that Ms. Chard’s evidence at the hearing about the context in which the “threesome” comment was made was different from the complaint and from Mr. Newton’s evidence, I attribute this to her nervousness and stress during the hearing process and do not find that it detracts from her general credibility or my finding that such comments were regularly made.

(iv) References to Women in Derogatory Terms

56I find that it has not been proven on a balance of probabilities that Mr. Newton regular referred to women in general or any women in particular as “bitch” or “cunt”, except for the admitted use of the word “bitch” in the context of a joke. While Ms. Chard made this assertion in her evidence, there was not sufficient detail or context provided for me to evaluate the credibility of this allegation against Mr. Newton’s denial. While Ms. Chard said that he made general statements like “women are cunts”, she provided no detail on the type of situation in which he would make this comment. Similarly, there was no evidence regarding the type of context in which he would regularly refer to D.R. in such terms.

57Since the Commission and Complainant have the onus to establish their allegations on a balance of probabilities, I cannot find that these events occurred, given the limited detail that Ms. Chard provided. This is not a finding that she was not telling the truth, but rather that the standard of proof has not been met.

(v) Evidence of Effects on Ms. Chard

58I accept Ms. Chard’s evidence as to the effects of these events upon her. Even if, as Mr. Newton suggested, they did speak in the grocery store on one occasion in December of 2003, this would not lead me to doubt her description of the effects of these events upon her life.

(vi) Summary of Factual Findings

59I find that in September of 2003, Mr. Newton touched Ms. Chard on her buttocks on one occasion and on her breast on one occasion as she described. I also find that Mr. Newton made sexual jokes and comments to Ms. Chard on a regular basis between July and September of 2003, including a comment about having an “affair” with her. I find that it has not been proven he referred to women using the derogatory terms alleged.

B. Violation of the Code

60Section 7 (2) of the Code provides as follows:

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.

Section 10 defines “harassment “ as follows:

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

61Both the touching incidents and the sexual jokes and comments violated s. 7(2). Mr. Newton knew or ought to have known that the touching and the sexual jokes and comments were unwelcome, in particular in light of the fact that she expressed this to him on numerous occasions.

62Mr. Newton relies upon the document signed by Ms. Chard on September 18, 2003 to suggest that she cannot bring this complaint. The wording of this document does not suggest that Ms. Chard released Mr. Newton from potential claims under the Code, which would be necessary in order to preclude her right to bring this complaint. Because, even on its face, there is no suggestion in this document that Ms. Chard was releasing Mr. Newton from any claims, I need not address the circumstances of the signing of this document or decide whether it constitutes a release of human rights claims more generally. It does not affect Ms. Chard’s right to claim compensation from Mr. Newton for the violation of her Code rights.

63Finally, I note that Ms. Chard’s motivation for bringing this complaint is irrelevant: see, for example, Earhart v. Nutritional Management et al., 2007 HRTO 31 at para. 28. Moreover, even if I were to find that the types of comments and discussions described by Mr. Newton took place in the office, it could not justify sexual harassment of Ms. Chard or any other violation of the Code.

C. Remedy

64The Tribunal’s remedial powers are set out in s. 41 of the Code. The Commission and the Complainant seek no order in respect of future conduct. They do, however, request awards of $10,000 in general damages and $6,000 for mental anguish pursuant to s. 41(1)(b), together with pre-judgment interest from September 11, 2003.

41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

(i) General Damages

65In Sanford v. Koop, 2005 HRTO 53 at para. 35, the Tribunal summarized the following factors used in assessing the appropriate quantum of general damages:

• 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

66I award the $10,000 in general damages requested. I have found that Mr. Newton engaged in a particularly serious type of sexual harassment – sexual touching of Ms. Chard. Ms. Chard’s testimony made it clear that this made her feel frightened and wary of men, and her testimony made clear the serious effects of having her bodily integrity violated. After these events, while she continued to work in the office, she experienced significant stress from being at work with Mr. Newton. Mr. Newton made sexual jokes and comments on a frequent basis, and they resulted in a sexualized atmosphere for Ms. Chard in her workplace. He ignored her repeated requests that he stop. Moreover, I note that this sexual harassment represented an attempted use of power by Mr. Newton, one of the two agents working in the office, over Ms. Chard, an assistant who had just commenced her employment.

(ii) Damages for Mental Anguish

67An award of damages for mental anguish requires that the conduct have been engaged in “wilfully or recklessly”. This sexual harassment clearly meets this definition.

68In Sanford, supra, at para. 38, Chair Gottheil summarized the following factors affecting the quantum of mental anguish damages:

• 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

69The mental distress these events caused Ms. Chard was significant. She explained how she had to take medication for nausea and headaches before going to work during the remainder of her period of employment. She still feels sick to her stomach when she sees the Respondent in the grocery store in her small community. She is fearful of strangers in public and leery of men outside her family. These circumstances justify the award requested.

70I note that I have awarded the amounts requested by the Commission and the Complainant despite the fact that I have found that one aspect of the conduct was not proven. This alleged conduct had a lesser impact upon the Complainant than the other aspects of the allegations and, equally important, the violations of the Code I have found justify the award requested.

(iii) Prejudgment Interest

71In the circumstances of this case, I award prejudgment interest pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, from September 11, 2003 (the date when the actions had taken place). The applicable rate is 3.0%, since this is the rate for proceedings commenced in the first quarter of 2004, when this complaint was filed. Postjudgment interest is payable pursuant to s. 129 of the Courts of Justice Act.

ORDER

72The Tribunal orders that the Respondent, Stewart Newton, pay the Complainant, Julie Chard, $10,000 in general damages and $6,000 in damages for mental anguish, plus prejudgment interest at the rate of 3.0% calculated from September 11, 2003.