Pchelkina v. Tomsons, 2007 HRTO 42

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marina Pchelkina Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Vladimir Tomsons Respondent

DECISION

Adjudicator: David A. Wright Date: November 27, 2007 Citation: 2007 HRTO 42 Indexed as: Pchelkina v. Tomsons

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

WRITTEN SUBMISSIONS BY

Ontario Human Rights Commission ) Monmi Goswami, Student-at-Law

INTRODUCTION

1Shortly after immigrating from Russia, Marina Pchelkina obtained her first job in Canada, working as a personal assistant to Vladimir Tomsons, a real estate agent. She worked for Mr. Tomsons for one week. During that time, he asked her to go out with him to a restaurant or club on three occasions. She refused each time. After the third refusal, on the Friday evening of her first week of work, he said that she would be fired if she did not go out with him and dismissed her.

2Ms. Pchelkina filed a complaint with the Ontario Human Rights Commission (the "Commission") on January 12, 2005, alleging sexual solicitation, harassment, and discrimination on the basis of sex. The complaint against Mr. Tomsons was referred to the Tribunal by letter received May 2, 2007. Mr. Tomsons has not participated in the Tribunal's proceedings in any manner, despite notice being provided to him. In an Interim Decision, Pchelkina v. Tomsons, 2007 HRTO 32, the Tribunal granted the Complainant and Commission's request to proceed by written hearing.

3For the reasons that follow, I accept Ms. Pchelkina's evidence and find that the Respondent's invitations constituted sexual solicitations and that she was dismissed because she refused them. Accordingly, I find that Mr. Tomsons violated the Human Rights Code, R.S.O. 1990, c. H.19 ("Code"). As a result of the impact on Ms. Pchelkina and the seriousness and nature of the conduct, I award Ms. Pchelkina $10,000 in general damages. I also award special damages for lost wages of $2,630.54. I award some, but not all of the public interest remedies requested by the Commission.

FACTS

4The evidence received by the Tribunal consisted of an affidavit sworn by Ms. Pchelkina. I accept this uncontradicted evidence.

5Ms. Pchelkina started work on Monday, September 13, 2004. She was paid eight dollars per hour to work forty hours per week. Her primary responsibilities were to answer phones, fax and copy documents, and arrange appointments for Mr. Tomsons.

6Around her third day of work, Mr. Tomsons asked Ms. Pchelkina to go out to eat with him so that they could get to know each other better. Ms. Pchelkina refused, saying that she was a married woman, but offered to stay at work late so that he could ask her any questions to get to know her better. He said that the office was not suitable and he would like to go somewhere else.

7The next day, he again asked her to go out to eat with him so that he could get to know her better. She again refused, mentioning that she was married. He said that they could go to a club instead. She again refused and emphasized that she was married.

8The following day, Mr. Tomsons suggested that they go to a restaurant and then to a club together because it was Friday. She refused, and said they could not get to know each other at a club because it would be too loud. Mr. Tomsons then said that he would fire Ms. Pchelkina if she did not go out with him. She was "in shock" and did not say anything in response. Mr. Tomsons then asked for her office key and told her she was fired. He wrote her a personal cheque for $320, representing five days of work.

9Ms. Pchelkina states that she felt upset and stressed by the dismissal. This was, in part, the result of the fact that this was a particularly difficult time for her and her family. She and her parents had recently immigrated to Canada, and the income was required to support her family. Her husband was still living in Russia, and she was in the process of sponsoring him to come to Canada. Losing her source of income, she states, lowered her chances of successfully doing so.

10Her dismissal made Ms. Pchelkina feel insecure, vulnerable and disposable. She had trouble sleeping at night, replaying the events in her mind. She did not understand why she was dismissed, and almost started believing that it was her fault. Since then, she feels apprehensive about working for men and finds it necessary to stress during job interviews with men that she is married.

11In November of 2004, Ms. Pchelkina called Mr. Tomsons's office to ask for a copy of her T-4 tax form and left a message on his personal voice mail. He did not return the call, nor did he provide the form or the record of employment.

ANALYSIS

A. Violation of the Code

12The Code specifically prohibits sexual solicitations and reprisals for rejection of them in s. 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 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.

13Section 9 prohibits infringements of Code rights:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

14It is apparent that Mr. Tomsons violated Ms. Pchelkina's rights under s. 7(3)(a). As her employer, he was in a position to confer or deny benefits and advancements. After she told him that she did not wish to meet with him outside the office because she was a married woman, he continued to insist that she go to a restaurant or club with him so that they could "get to know each other better". The circumstances make it apparent that the solicitations were sexual and given Ms. Pchelkina's repeated refusal, it is clear that they were unwelcome.

15The violation of s. 7(3)(b) is also apparent. Mr. Tomsons told Ms. Pchelkina that she was dismissed because she rejected these solicitations. Accordingly, she was dismissed as a reprisal for doing so.

B. Remedy

16The Tribunal's remedial powers are set out in s. 41 of the Code as follows:

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,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(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

17I award general damages of $10,000, as requested by the Commission. The Tribunal makes general damage awards to compensate for the intrinsic value of the infringement of the Complainant's rights. In 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

18Ms. Pchelkina states that she felt insecure, vulnerable, and disposable as a result of the solicitations she experienced. She was in a particularly vulnerable situation because she had recently immigrated to Canada, and was in the process of sponsoring her husband. She experienced a loss of confidence, and almost started believing that the dismissal was her fault.

19In assessing the seriousness of the conduct, what is most significant is that Mr. Tomsons dismissed Ms. Pchelkina because of her refusal of his sexual solicitations. While the invitations to dinner and clubs were relatively minor forms of sexual solicitation, Mr. Tomsons made them repeatedly, and used his power as employer to place Ms. Pchelkina in the untenable situation of choosing between unwanted invitations and her job. The use of the power to dismiss for an employer's sexual purposes is particularly serious. On the other hand, I also take into account that Ms. Pchelkina was only employed in this position for one week, and it is reasonable to infer that, in general, the loss of a recently acquired job has fewer effects than losing a long-term position.

(ii) Damages For Mental Anguish

20This is not an appropriate case for a separate award of damages for mental anguish, since the effect on Ms. Pchelkina as described in her affidavit was not so serious as to amount to mental anguish within the meaning of the Code. In Fuller v. Daoud, [2001] O.H.R.B.I.D. No. 19 at para. 66, the Board of Inquiry found that mental anguish:

... suggests a relatively high degree of mental pain and distress. It is more than mere disappointment, angry feelings, worries, resentment or embarrassment. Yet, it necessarily includes all of the foregoing. It does, however, include mental sensation of pain resulting from painful emotions such as grief, severe disappoint[ment], indignation, wounded pride, shame, despair or public humiliation: (see Black's Law Dictionary, 6th ed.). Mental anguish is a subjective suffering that does not require medical proof.

See also Ketola v. Value Propane Inc, [2002] O.H.R.B.I.D. No. 14 at para. 10.

21The Commission relies upon the facts that Ms. Pchelkina had difficulty sleeping at night when she was dismissed, that she felt insecure, vulnerable and disposable, and that she did not understand why she was dismissed and almost started believing that it was her fault. In her affidavit, Ms. Pchelkina suggests that her difficulty sleeping arose from "replaying the events that led up to Tomsons' firing me in my mind".

22The effects on Ms. Pchelkina were not the type of "painful emotions" contemplated by the Code. While she experienced worries, feelings of vulnerability and insecurity, as described in her affidavit they do not reach the level required for an award of mental anguish damages. I have, however, taken these facts into account in my award of general damages.

(iii) Special Damages

23The Tribunal's special damages award should restore Ms. Pchelkina to the position she would have been in had the violation of the Code not occurred. Accordingly, Ms. Pchelkina should be compensated for lost income as a result of the dismissal.

24Ms. Pchelkina's affidavit states that approximately two weeks after the dismissal, she started looking for work. She sent out resumes and checked the classified advertisements in newspapers and jobs listed on on-line employment websites. It states that "[o]n or about" the beginning of November, 2004, she found a job working 40 hours per week, for $7.15 per hour. She states that "approximately" eight months later, she switched jobs and began earning $9.00 per hour working 35 hours per week.

25Based upon these facts, the Commission states that Ms. Pchelkina was unemployed for "approximately" two months and accordingly should be awarded $2,560 in lost income for the period before she first obtained work. It argues that she should be awarded a further $1,088 reflecting a loss of 85 cents per hour for eight months as compared with the wages she earned while working for the Respondent.

26I am concerned with the manner in which the claim for special damages has been presented in this case. The Commission and/or Complainant have the obligation to establish her losses, yet the affidavit sets out only "approximate" dates on which she obtained other employment. Moreover, the Commission has requested eight weeks of lost wages despite the fact that there were only six weeks between the date of her dismissal and November 1, 2004. Ms. Pchelkina states that she obtained new work "[o]n or about the beginning of November 2004".

27The obligation to prove the losses lies on the Commission and the Complainant. In light of the approximations in the Complainant's affidavit, losses for the full period requested have not been proven. I find that it has been proven that the Complainant was completely out of work for five weeks, and accordingly award $1,600 for this period, reflecting weekly wages of $320. In so doing, I assume from the fact that only an approximate start date was provided that she may have started work up to one week prior to November 1, 2004.

28The Complainant is entitled to her wage losses throughout the period it has been demonstrated that she was earning $7.15 per hour, reflecting a loss of 85 cents per hour for forty hours per week. However, in light of the approximation in her evidence that she worked in that job for "about" eight months, I will assume that there may be an error of up to one month, and accordingly will base my award on seven months of reduced wages. The amount $1,030.54 reflects a wage loss of 85 cents per hour, over seven months, at an average of 4.33 weeks per month.

29Accordingly, I award the Complainant $2,630.54 in special damages for lost wages.

(iii) Interest

30The Commission seeks prejudgment interest from September 17, 2004, the date that Ms. Pchelkina was dismissed. I agree that in the circumstances of this case, interest on the general damages should run from this date, as the violations of the Code took place on September 17, 2004 and in the days previous, and it is accordingly the "date on which the cause of action arose" in these circumstances: Courts of Justice Act, R.S.O, 1990, c. C.43, s. 128 (1) as amended; Szabo v. Poley, 2007 HRTO 37 at para. 31.

31However, the interest on special damages runs from a later date. As the Tribunal noted in Szabo, supra, at para. 31, citing the Court of Appeal in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 at para. 27 (C.A.), prejudgment interest on payments for lost salary runs from the date such payments were due. For certainty and convenience, and given the lack of detailed evidence on the Complainant's reemployment, I will exercise my discretion to award interest on the special damages of $1,600 for the period of complete unemployment from November 1, 2004 and on the special damages of $1,030.54 for the period of reduced wages from June 1, 2005, the approximate end date of each period. The applicable rate is 2.8%. Postjudgment interest is payable pursuant to s. 129 of the Courts of Justice Act.

(iv) Public Interest Remedies

32The Commission has requested that the Tribunal award the following additional remedies:

1. Within three months of the Tribunal's decision Tomsons will undergo, at his own expense, human rights training facilitated by an expert on the Code, who is known to and approved by the Commission. This training must include training on discrimination, the right to be free from sexual solicitation, and sexual harassment and gender-based discrimination. Tomsons must inform the Commission once the Training is complete.

2. Within three months of the Tribunal's decision, Tomsons will post Code cards, provided by the Commission, prominently within his place of business indicating that he observes and upholds the Human Rights Code. Tomsons must inform the Commission once the cards have been posted.

3. The Respondent shall advise the Commission if he ever employs another female employee before that employee starts working for him.

4. The Respondent is to provide all female job applicants with a copy of the Tribunal's final decision in this case.

33The Tribunal's power in s. 41(1)(a) to direct a party to do anything that in its opinion is necessary to achieve compliance with the Code is, as the Board of Inquiry recognized in Curling v. Torimiro (No. 4) (2000), 2000 CanLII 20870 (ON HRT), 38 C.H.R.R. D/216 at para. 66, broad, and should be interpreted liberally and in a manner consistent with the purpose of the Code as remedial legislation. Moreover, the Tribunal's power to award what have become known as "public interest remedies" is an important part of its mandate in ensuring that its decisions not only redress the discrimination experienced by the individual Complainant, but also assist in ensuring that future violations do not occur. They are of particular concern in a case where the Respondent has not participated, because this may suggest that the Respondent "does not take the law, or his violations of it, seriously": Morrison v. Motsewetsho (No. 2), 2003 HRTO 21 at para. 224.

34While the Tribunal's power is broad, remedies under s. 41(1)(a) must relate to the section's purpose of promoting compliance with the Code. Moreover, they must reflect the general principle that human rights codes are remedial, not punitive, and should reflect the violation of the Code that the Tribunal has found.

35I accept that the first two remedies sought by the Commission are consistent with the principles of s. 41(1)(a) and I award them. Attending training promotes compliance with the Code by assisting the Respondent in understanding the law and his obligations. Posting Code cards makes all those attending at Mr. Tomsons's offices aware of their rights under the Code and thereby promotes respect for and enforcement of it. Both of these remedies have been frequently awarded in Tribunal proceedings.

36However, in my view the final two remedies would be primarily punitive. The Commission has provided no argument as to how they would promote compliance with the Code, and I do not believe they would do so. In Papa Joe's Pizza v. Ontario (Human Rights Commission), 2007 CanLII 23487 (ON SCDC), [2007] O.J. No. 2499 at para. 25 (Div. Ct.), the Court found that an order that a Respondent advise the Commission of the names and addresses of departing female employees was "overly invasive and unreasonable". It follows that an order that this Respondent advise the Commission before any new female employee is hired, which arguably goes even further, is also not appropriate.

37Moreover, I do not believe it would be appropriate to require the Respondent to provide female job applicants with a copy of the Tribunal's decision. Since any new employees will be advised of their rights through the posting of a Code card, I believe this remedy would primarily stigmatize the Respondent. I am also concerned that it may cause the Respondent to discourage women from applying for jobs to avoid this remedy and thereby lead to a violation of the right to equal treatment with respect to employment without discrimination.

ORDER

38The Tribunal makes the following order:

(1) Vladimir Tomsons shall pay Marina Pchelkina $10,000 in general damages, together with prejudgment interest on this amount at the rate of 2.8% from September 17, 2004.

(2) Vladimir Tomsons shall pay Marina Pchelkina $2,630.54 in special damages for lost wages, together with prejudgment interest at the rate of 2.8%. Prejudgment interest shall run from November 1, 2004 on $1,600 of this amount and from June 1, 2005 on $1,030.54 of this amount.

(3) Within three months of the Tribunal's decision, Vladimir Tomsons shall undergo, at his own expense, human rights training facilitated by an expert on the Code, who is known to and approved by the Commission. This must include training on discrimination, the right to be free from sexual solicitation, and sexual harassment and gender-based discrimination. Mr. Tomsons must inform the Commission once the training is complete.

(4) Within three months of the Tribunal's decision, Vladimir Tomsons shall post Code cards, provided by the Commission, prominently within his place of business indicating that he observes and upholds the Human Rights Code. Mr. Tomsons must inform the Commission once the cards have been posted.