HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barbara Boldt-MacPherson
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
The Hoita Kokoro Centre and John Hoita
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: Boldt-Macpherson v. The Hoita Kokoro Centre
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
Barbara Boldt-MacPherson, Complainant ) On her own behalf
The Hoita Kokoro Centre and John Hoita, Respondents ) Harry Kopyto, Representative
Ontario Human Rights Commission ) Melanie Shulman, Counsel
Introduction
1This proceeding arises from a complaint filed with the Commission on September 21, 2004. The complainant alleges that the personal respondent John Hoita (the "respondent" or the "personal respondent") made improper sexual solicitations and advances towards her throughout the period from 1997 until March 2004, in violation of s. 7(3)(a) of the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). The complainant also alleges that during this same period, the respondent made threats of reprisal or took reprisals against her for the rejection of his sexual solicitations or advances in violation of s. 7(3)(b) of the Code.
2The complainant was employed by the respondents at least during the period from July 2002 until March 2004, and she further alleges that she experienced workplace sexual harassment and gender discrimination with respect to her employment, in violation of ss. 7(2) and 5(1) of the Code respectively.
3Finally, the complainant alleges that she experienced reprisal by the respondents for seeking to claim and enforce her rights under the Code, in violation of s. 8 of the Code.
4The complaint was referred by the Commission to the Tribunal on April 26, 2007 and the hearing took place in Toronto and Owen Sound over the course of 14 days in April and May 2008.
BACKGROUND
5The complainant is a 45 year old married woman who lives in the Owen Sound area. The personal respondent, John Hoita, is a practitioner of various forms of holistic medicine including acupuncture and massage as well as being a tai chi instructor and hair stylist. The personal respondent moved to the Bruce Peninsula in 1986 and started teaching tai chi in the Owen Sound area sometime in the latter part of the 1980's and met the complainant when she attended his classes.
6In 1990, the respondent opened a massage and acupuncture centre in Owen Sound that he operated until December 1996. Sometime in the early 1990's, the complainant attended at the respondent's business to receive treatments. The complainant became interested in pursuing a career in the field of holistic medicine, and took a course in this area offered by the respondent in 1993 and 1994. After the course was completed, the complainant commenced working at the respondent's business on a volunteer basis in order to continue her training.
7At this time, the respondent was married to a woman who died tragically in November 1993. While married, the respondent engaged in extra-marital sexual affairs with at least two of his students, both of whom testified as similar fact witnesses in this proceeding. The respondent married one of these students in 1994 and lived with her until they separated in 1999.
8In 1996, the respondent became interested in another field and decided to sell his holistic medicine business. The business was purchased by the complainant in December 1996. The complainant continued to operate the business in Owen Sound until she moved the business to her home in 2000 in anticipation of the birth of her son in 2001.
9In the fall of 1997, the respondent opened a hair salon at the Balmy Beach plaza just north of Owen Sound. It is during the period starting in 1997 that sexual interaction between the respondent and the complainant commenced. The precise nature of this sexual interaction is a matter of much dispute between the parties.
10The respondent left his second wife in early 1999. The respondent was abusing alcohol at the time, and as a result was hospitalized and lost his driver's licence. The respondent lived in the detox centre at the local hospital until April 1999, when he moved to a cottage home in the Balmy Beach area north of Owen Sound. During this period, the complainant and the respondent maintained regular contact with each other, with the complainant assisting the respondent by running errands for him because of his inability to drive. Whether this assistance was voluntary or coerced is yet another matter that is disputed.
11The respondent met his current wife in the spring of 2000 and they commenced living together shortly thereafter and were married in March 2002. The complainant and her husband were maid of honour and best man at the respondent's wedding. The complainant alleges that sexual solicitations and advances continued to be made by the respondent throughout this period. In contrast, the respondent alleges that their consensual sexual relationship ended in the fall of 1999 when he realized that she was not going to leave her husband, and did not continue during the period that he met and married his current wife.
12The complainant gave birth to her son in 2001. The respondent was present in the delivery room for the birth. One of the reasons for this may have been that he was providing treatment to the complainant to assist with natural childbirth. The respondent also was named by the complainant as her son's godfather.
13In December 2001, the complainant moved her holistic medicine business to the respondent's business premises in the Balmy Beach plaza. The complainant conducted her business out of a room at the back of the respondent's hair salon that she rented from him. The complainant's business was not going well at this time. In July 2002, as a result of discussions involving the complainant and her husband and the respondent and his wife, it was decided that the complainant would become an employee of the respondent and be guaranteed a rate of pay that was roughly equivalent to the income that she had been bringing in through her business.
14During this same time period, the respondent decided to get back into the holistic medicine business. In 2002, he expanded his business premises to add a tai chi instruction area or "dojo". In addition, treatment rooms were constructed at the back of the new premises. The holistic medicine business operated under the business name "Hoita Kokoro Centre" and was operated through the corporate respondent Hoita Kokoro Centre Inc. During this time period, the respondent also continued to operate his hair salon.
15The complainant continued to work for the respondent until March 2004. The precise circumstances leading up to the complainant's departure from the respondent's business are yet another matter in dispute. The respondent's evidence is that by the fall of 2003, the complainant was exhibiting signs of serious stress as a result of becoming involved in litigation relating to childhood sexual abuse by her uncle, serious health problems being experienced by her father and a desire to spend more time with her son. There appears to be agreement that at or around this time there was a discussion about the complainant taking compassionate leave, but whether the complainant agreed to do this is in dispute. The respondent's evidence is that the complainant's appointments initially were reduced to three days per week, and then in March 2004 he had his accountant prepare a Record of Employment for the complainant that he understood would enable her to go on compassionate leave.
16The respondent's evidence is that there was no sexual relationship or interaction between himself and the complainant during the period when she was employed by him, and there had been no sexual contact since 1999.
17The complainant tells a very different tale. She alleges that the sexual solicitations and advances by the respondent, which she describes as sexual assault or abuse, continued throughout their entire relationship from 1997 to March 2004. While acknowledging that she was involved in litigation against her uncle and wanted to spend more time with her father and son, the complainant's evidence is that she ultimately left her employment with the respondent because eventually she got tired of the sexual abuse.
18There is no dispute that after receiving her Record of Employment, the complainant attended with the police at the respondent's business premises on April 7, 2004 and removed her equipment. The complainant filed a claim against the respondent under the Employment Standards Act, 2000 that was settled in late August 2004. She also has commenced a proceeding before the Criminal Injuries Compensation Board that is on hold pending the result of this human rights proceeding. Finally, the complainant reported the respondent's conduct to the police, although no charges were laid and it does not appear that the respondent was contacted by the police about these allegations.
DISCUSSION AND ANALYSIS
Standard of proof
19At the outset, I need to address the standard of proof, as the respondents have argued that, because the complainant has alleged conduct of a criminal nature, a higher standard or degree of proof should be applied to the evidence. In making this argument, the respondents rely principally upon the decision of the Supreme Court of Canada in Continental Insurance Co. v. Dalton Cartage Co., 1982 CanLII 13 (SCC), [1982] 1 S.C.R. 164. This case expressly does not change the standard of proof in civil cases from the well-established standard of proof on balance of probabilities, which also applies in human rights case. Rather, this case endorsed the principle that a trial judge is justified in scrutinizing evidence with greater care if it involves serious allegations, and states that "in proportion as the crime is enormous, so ought the proof to be clear". In my view, this is not a statement that establishes a different standard or degree of proof for allegations of criminal conduct, but is simply an expression that the seriousness of the allegations is a factor that needs to be considered when determining whether an allegation has been proven.
20The respondents also rely upon the decision of the Divisional Court in LSUC v Neinstein (2007), 2007 CanLII 8001 (ON SCDC), 85 O.R. (3d) 446 that applies the Continental Insurance decision. This case involves a judicial review of a disciplinary proceeding before the Law Society. While this case also recognizes that the standard of proof remains proof on balance of probabilities, the Court states that "given the seriousness of the allegations and possible consequences, the allegations must be proven on clear and convincing and cogent evidence". In my view, this decision does not depart from the principles set out by the Supreme Court of Canada and does not establish some new degree or standard of proof required in all cases where serious allegations are raised.
21No human rights decision has been cited to me where some higher standard or degree of proof has been required. It is not uncommon for allegations of sexual harassment or improper sexual solicitations or advances to involve conduct that also may amount to sexual assault under the Criminal Code. But I am not aware of any human rights case that has adopted a higher standard or degree of proof in such cases, nor in my view would it be appropriate to do so.
Assessment of credibility
22The decision in this case turns largely upon my assessment of the credibility and reliability of the evidence given by both the complainant and the respondent, in the overall context of the totality of the evidence heard or submitted during the course of this proceeding.
23In assessing credibility, I have applied 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 [the witness] 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...
1. Section 7(3)(a): Sexual Solicitations or Advances
24Section 7(3)(a) of the Code provides as follows:
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.
A. Credibility and reliability of the complainant's evidence
25I have concluded that the complainant's evidence that she was forcibly sexually assaulted by the respondent is not reliable in light of the manner in which her evidence came out at the hearing and inconsistencies in her evidence, as explained more fully below.
i) Manner in which her evidence came out at the hearing
26In her examination-in-chief, the complainant testified that her sexual interaction with the respondent commenced in 1997. The complainant described two specific incidents in some detail, the first in a hotel room where there was sexual touching but no penetration and then some time later at her business when she was giving him a treatment and he touched her inappropriately and ultimately penetrated her. On both occasions, the complainant testified that she said no and told the respondent to stop. The complainant then testified that encounters like that "happened a lot" and she "guesstimated" that such encounters were happening twice per week with such encounters taking place at the respondent's hotel room, at the complainant's business or at the respondent's business. The complainant testified that the respondent's sexual advances continued after she moved her business to her home in December 2000 and became pregnant, although "maybe not quite two times per week". The full extent of detail or particulars of these encounters provided by the complainant was that they were "pretty much the same".
27The complainant testified that the sexual solicitations continued after she commenced renting space from the respondent in December 2001 and while she was employed by the respondent from July 2002 until she left in March 2004. She testified that most of the time these encounters occurred at the Hoita Kokoro Centre, about twice per week and usually on Mondays or Fridays when things were slow and no-one else was there. The complainant testified that there were always overtures from the respondent, comments about what she was wearing, touches and brushing up against her, and the respondent always seemed to be able to corner her. The complainant testified that she was required to be at the centre earlier than any scheduled appointments, and that this was when the sexual solicitations happened. With regard to the actual sexual encounters themselves, the entirety of the complainant's evidence was that they were "pretty much the same" and that she did try to resist.
28On cross-examination, the complainant testified that she has some memories of events that took place between her and the respondent prior to 2000, but said that because of the length of time of the abuse it is just brief flashes that she remembers and not complete memories. On another occasion, in response to a question about whether she recalled sexual encounters in the washroom at the respondent's business in the Balmy Beach plaza or in an empty store at the plaza, the complainant testified that she couldn't recall that and doesn't recall all of the details of that time. At a later point in cross-examination, in response to a question about how her clothes would come off in order to allow penetration, the complainant first said that the sexual assaults occurred during treatments so that her clothes already would be off, but then subsequently said that she recalls occasions when the respondent took her clothes off and that she even recalls her pantyhose and underwear being ripped in the process, although she doesn't know on how many occasions. The complainant also testified on cross-examination that she recalls one occasion when she was blindfolded, although no further specifics were provided.
29After the Commission was permitted an opportunity to conduct any re-examination, I asked some questions in order to clarify my understanding of the complainant's evidence. In view of the fact that there was no evidence of any specific encounter subsequent to the very first two encounters that the complainant states occurred in 1997, I emphasized that I did not want to re-traumatize her but asked whether the complainant had any specific recollection of more recent incidents. At this point, the complainant provided specific recollections of three separate incidents. The first incident occurred when she had gone to the respondent's barber shop to get her hair cut for her uncle's birthday before she started working at the Hoita Kokoro Centre, and the respondent insisted that she needed a treatment and took her into a back office and blindfolded her. While she was blindfolded, the complainant states that the respondent disrobed and assaulted her on the treatment table. The next specific recollection was of a time when no-one was at the centre and the respondent insisted that she come to the back office, and the respondent had sexual intercourse with her. The complainant testified that a client came in while the respondent was assaulting her, and she had to get dressed very quickly to go out to work with this client. The third specific recollection was of an incident that occurred in the middle of the day when there were no clients or students at the centre, and the respondent took the complainant to the back and sexually assaulted her. The complainant testified that while this was going on, a salesperson who was renting plants came into the centre, and the complainant was told to get dressed quickly and go out and deal with it. After relating these three incidents, the complainant testified that no further specific recollections came to her mind at that moment.
30As I was concerned about the details of these specific allegations coming out so late in the process, I allowed the respondents' agent considerable latitude to conduct further cross-examination arising out of the complainant's answers to my questions. In the course of this cross-examination, further specific recollections came forward, including an incident where the complainant states that the respondent put his hands around her neck and tried to choke her as he was penetrating her, another incident where the complainant states that the respondent pushed her up against a wall, and yet another incident where the complainant states that the respondent put handcuffs on her and penetrated her.
31Lest there be any question as to the adequacy of pre-hearing disclosure or of the examination-in-chief, I hasten to add that the complainant's testimony is that she had no memory of these specific incidents until she was on the witness stand. The complainant testified that as a result of the experience of giving her testimony, she "was triggered and a flood of memories came in". The complainant described this experience as being "like a door opened and there was this huge overwhelming flood of pictures, incidences, examples of abuse" which she had locked away as a result of the trauma and in order to protect herself and carry on with her life.
32I accept the proposition that victims of trauma, including sexual abuse, can lock away memories of the abuse as part of their coping strategies, and that these memories can later emerge as part of the healing process or as a result of some triggering event. In my view, I can take judicial notice of this without any requirement for the Commission or the complainant to lead expert evidence on the point, as submitted by the respondent. I further accept the proposition that the experience of giving evidence at a hearing can be a triggering event that could cause repressed memories to emerge. From my observation of the complainant while she was giving her evidence, she was clearly in distress, necessitating the breaking up of her cross-examination over the course of several days.
33I accept the complainant's evidence that prior to taking the witness stand, she was not consciously aware of the alleged incidents that she described in response to my questions and the further cross-examination, and I further accept that the experiences she described were real for her, in the sense that they reflected a flood of images that came to her mind as a result of giving her evidence.
34That, however, is not the end of the matter, as it is my role as the adjudicator to assess the credibility and reliability of the complainant's evidence in the context of the entirety of the evidence I heard in this proceeding. When these experiences, while being real for her, are assessed in the context of the totality of the evidence, I find them to lack sufficient credibility and reliability to support a finding that these alleged encounters occurred, as a result of many inconsistencies, implausibilities and improbabilities.
35For example, the first incident described by the complainant in response to my questions is alleged to have occurred on a treatment table in the back room of the respondent's hair salon prior to the complainant working there. I accept the evidence of the respondent and his spouse that no such back room existed at this time, and that the back room was created for the express purpose of being rented to the complainant when she commenced working with the respondent in December 2001.
36With regard to the second incident described in response to my questions, the complainant's memory is that the client who came into the centre was a man named Bill Brown. Mr. Brown was not on the respondent's witness list for the hearing, and was called to testify only after this allegation was made. I found Mr. Brown to be credible and straightforward in his testimony. The complainant's memory is that Mr. Brown came in early in the morning to work on his tai chi practice, not for a morning tai chi class. Mr. Brown's evidence is that, while he was aware that he could come to the dojo any time to work on his practice, he did not avail himself of that. Further, Mr. Brown could recall no occasion when he showed up early for a morning class and no-one else was present and then the complainant came out from the back room, describing this as "an unlikely scenario".
37With regard to both the second and third incidents described by the complainant in response to my questions, which are alleged to have occurred in the back office of the Hoita Kokoro Centre, the complainant's evidence is that the respondent was aware that the client and the salesperson had entered the centre because he was watching a monitor connected to a security camera trained on the front door. While there is a dispute in the evidence as to the precise location of this monitor in the respondent's office, I find it to be implausible that the respondent was able to watch the monitor while he allegedly was sexually assaulting the complainant. The complainant's evidence is also that she resisted the respondent's sexual assaults by yelling as loudly as she could, and I find it implausible that she wouldn't have been heard by one or both of these individuals if the events had occurred as she described.
38On the cross-examination arising out of my questions, the complainant described an experience of being handcuffed by the respondent, and states that she recalls having bruises on her wrists as a result and having to wear long coats to cover up the bruising. No explanation is provided as to how these bruises were concealed from her husband or what she told him about them, or how she could wear long coats and conceal these bruises while giving treatments or teaching tai chi.
39The complainant's husband, who testified after the complainant's evidence had been completed, gave evidence of an alleged incident that occurred at their home in 2001 shortly after their son was born. This witness testified that there was a day sometime in 2004 when he was called at work by the police and told to come home. This day was described as the day when the complainant "quit" her employment at the Hoita Kokoro Centre, although no specific date or context was provided. After arriving home, this witness testified that the complainant told him that she had been raped by the respondent, and specifically said that she had been raped when the respondent had given her a treatment in her home in 2001. No evidence was provided by the complainant regarding this alleged incident. I accept the evidence of the complainant's husband that the complainant did tell him about this incident at the time. What is not explained on the evidence before me is how in 2004 the complainant could remember this alleged incident, which clearly would have been a source of severe trauma, and yet not remember other more recent incidents until the hearing.
40I want to be clear that I am not finding the complainant's evidence to be unreliable solely on the basis that she repressed memories of traumatic incidents or that any such repressed memories emerged during the course of giving her evidence. Rather, I find the complainant's evidence about these alleged events to be unreliable when assessed in the overall context of the evidence as a whole.
ii) Other inconsistencies in the complainant's evidence
41In addition to the matters already discussed, there are other inconsistencies in the complainant's evidence that in my view render her evidence unreliable.
42The complainant's evidence is that there was no break in the sexual interaction between herself and the respondent from 1997 until March 2004, and that the sexual abuse was ongoing without interruption throughout the period when the respondent met his current wife in 2000 and married her in 2002. This evidence is inconsistent with the notes recorded by a counsellor whom the complainant went to see on December 16, 1999, which indicate that at that time the complainant stated that the conduct was over and she didn't expect it to continue. The complainant saw this counsellor again on December 29, 1999, and the counsellor's evidence is that the improvement in the complainant's symptoms from the first visit to the second was an indication that the abuse had stopped. No further follow-up was scheduled because the complainant didn't see the need for further counselling at that time and the counsellor was satisfied with this, so both agreed to discharge the complainant. The complainant did not return to see this counsellor again until 2005, and did not see any other counsellor regarding the alleged sexual abuse by the respondent until sometime in 2004 after she had ceased working for him. When asked why she had stopped seeing this counsellor in 1999 and why she discontinued any reports of or counselling for the alleged sexual abuse, the complainant said that she didn't recall.
43I appreciate that women who are victims of abuse will sometimes commence and then stop counselling for the abuse or stop making reports about the abuse even while the abuse is continuing. Indeed, one witness who had worked as a sexual assault counsellor testified that on average, a woman will make 18 attempts to leave an abusive relationship and get counselling. In this specific case, however, I do not have any explanation to account for the significant gap between the complainant telling her counsellor in December 1999 that the abuse had stopped and next seeing any counsellor or making any report about the abuse until sometime in or after March 2004 Also, there are other considerations that make it unlikely that the complainant's evidence that the abuse continued without interruption is reliable. The respondent met his current wife in the spring of 2000, they moved in together shortly after that, and got married in 2002. The complainant and her husband were maid of honour and best man at their wedding. During this period, the complainant moved her business to her home in December 2000 and gave birth to her son in 2001. The complainant asked the respondent to be present at the hospital for her son's birth, and named the respondent as her son's godfather. In all of these circumstances, I do not find it credible that any sexual abuse, solicitation or harassment of the complainant took place during the period from December 1999 until she moved her business to the respondent's premises in December 2001. As a result, I find the complainant's evidence that the abuse continued without interruption to be unreliable.
44There are further inconsistencies in the period of the alleged sexual abuse as reported by the complainant to her counsellors. For example, in February 2005 the complainant returned to see the counsellor she had first seen in December 1999, for the purpose of pursuing a claim before the Criminal Injuries Compensation Board ("CICB"). Ultimately, a Therapy Report (Sexual Abuse) was prepared by this counsellor for the CICB on February 10, 2006. In this report, the counsellor states that the complainant "reports that she was sexually assaulted over a two year period by her former employer John Hoita". In her testimony, the counsellor clarified that she was referring to the two year period preceding the complainant's initial appointments with her in December 1999. The counsellor confirmed that she had reviewed this report with the complainant prior to submitting it to the CICB. This is inconsistent with the complainant's allegation that the sexual assaults continued uninterrupted over a seven year period from 1997 to March 2004.
45The complainant also saw a second counsellor who worked at the local Sexual Assault Centre. The evidence is unclear as to the precise period when the complainant saw this counsellor, but it appears that she first went to see this counsellor in 2003 regarding the childhood sexual abuse by her uncle and then raised the alleged sexual abuse by the respondent sometime after she stopped working at the Hoita Kokoro Centre, sometime in or after March 2004. The complainant continued to see this counsellor until the Sexual Assault Centre closed in December 2004. There is a lack of clarity about the dates that the complainant saw this counsellor because the file, which is currently in the possession of the local Women's Centre, was not produced. The counsellor testified that when the Sexual Assault Centre closed, the files at the Women's Centre went into "lock down" and she couldn't get access to these files without client authorization. The complainant herself testified that she experienced difficulty in gaining access to her file, and only was granted a 15-minute period to review her file during the course of the hearing and was not permitted to make any copies of file documents. No request was made for an order compelling disclosure of this file. While I appreciate concerns about the confidentiality of counselling records, in this case the Commission and the complainant called the counsellor to testify and so could not properly assert any concern about maintaining confidentiality of the counsellor's records. In the absence of these records and the counsellor's ability to refresh her memory from these records, I am concerned about the accuracy of this counsellor's evidence.
46This counsellor testified that the complainant told her how long the assaults had been going on, but the counsellor couldn't recall and would only be guessing. However, she testified that her impression was that the assaults had occurred in the one year period before the complainant came in to see her. While I appreciate this counsellor's honesty in acknowledging that she could not remember what the complainant had told her about how long the assaults had been going on, there is a significant inconsistency between the assaults having gone on for one year as recalled by the counsellor as opposed to having continued over a period of seven years as alleged by the complainant. There is also a significant inconsistency between the assaults having occurred in the one year period prior to the complainant first seeing this counsellor in 2003 and the evidence of the other counsellor that the assaults occurred in the two year period prior to December 1999.
47A further inconsistency arises out of this second counsellor's evidence regarding what the complainant told her about the alleged sexual abuse. Both counsellors stressed that it is not common for sexual abuse victims to discuss the details of sexual abuse at the beginning of the counselling relationship nor do counsellors press for such details, as a relationship of trust must first be established. Nonetheless, the second counsellor states that the complainant did eventually tell her details of the abuse, including that she was fearful of being alone with the respondent, although the counsellor could not recall any specifics of the assaults themselves. On cross-examination, this counsellor said that the complainant did not describe any specific situations where the respondent made any sexual advances or offered her any benefits for sexual favours, nor was she ever told by the complainant that the sexual abuse by the respondent involved the use of force against the complainant's will, such as being held down with his hands, or that the respondent handcuffed her, threw her against a wall or any incidents like that. This witness further testified that the complainant never told her that she had yelled as loudly as she could, telling the respondent to stop. In fact, in her witness statement given to the Commission investigator, this counsellor was asked the question, "Did [the complainant] say no, or was it that she wasn't in a position to say yes?", and the counsellor answered that it was the latter. This witness testified that she does not differ now from the statement she gave to the Commission investigator.
48In addition to the testimony of the two counsellors, the complainant also submitted certain selected medical records prepared by a doctor in the Department of Psychiatry in her local hospital. The complainant was seeing this doctor primarily in relation to her bi-polar disorder, but also discussed other issues in her life. In one record dated May 11, 1998, there is reference to "the problem that she has been having with her ex-tutor" which is described as being "unethical" and as "becoming somewhat of a stress for her". The record from her next appointment on June 25, 1998 states that the complainant had "broken ties with her ex boss who apparent[ly] tried to have a relationship with her". While this record indicates that the complainant's next scheduled appointment was on August 26, 1998, no further records were provided in evidence until March 24, 1999, in which the doctor states:
She talked a bit about her previous teacher, and some of the difficulties that she has been having with him in that he wants to get into a personal relationship with her and she has been trying as best as possible to give him straight messages about her not interested in him but by the same token needing to keep in touch with him as a resource person.
49The complainant's evidence is that she told this doctor that the respondent was coming on to her and wanting a sexual relationship. In this regard, I note two things. First, this is not what the doctor's notes say. The doctor's notes refer to a "relationship" or a "personal relationship". The respondent's evidence is that, during this period, he and the complainant were mutually engaged in a sexual relationship or affair, but that he wanted more and wanted the complainant to leave her husband and marry him. The respondent's evidence is that, when he finally realized in the fall of 1999 that the complainant was not going to leave her husband, he broke off the sexual relationship with the complainant and started seeing other women. Viewed in the context of this evidence, the doctor's notes are at best ambiguous. The "unethical" problem that the complainant was having with the respondent and that was a source of stress for her could just as easily have been that the complainant and the respondent, both of whom were married at the time, were having a sexual affair. The "relationship" or "personal relationship" that the respondent tried to have with the complainant could just as easily refer to the respondent's desire for more than just a sexual relationship. The "straight messages" that the complainant had been trying to give to the respondent could just as easily have been the message that she was not going to leave her husband. The doctor himself was not called to clarify what he meant in his notes, or to provide his recollection as to what he was told by the complainant or what his understanding of the situation was. In the absence of any such evidence from the doctor, I am unable to resolve the ambiguities that appear in his records.
50The second problem is that the complainant's own evidence as to what she told the doctor does not correspond to her testimony as to what was happening at this time. The complainant's testimony is that at this time, the respondent was forcing himself upon her and sexually assaulting her against her express protestations that she did not want this. I appreciate that a victim of sexual abuse may be fearful and tentative about making full disclosure of the incidents of abuse, especially in the more clinical environment of a hospital psychiatrist. But I have no actual evidence that this occurred. Rather, the complainant recalls virtually nothing about her interactions with the doctor or what she told him. Further, the complainant could provide no explanation for the specific actions that the doctor recorded she had taken. For example, the complainant could not provide any explanation for the doctor's statement that she had broken ties with the respondent, or for the doctor's statement that she needed quite a lot of reinforcement and persuasion that what she was doing to deal with the respondent was correct.
51I am alive to the possibility that the sexual interaction between the complainant and the respondent may not in fact have involved the respondent physically forcing himself upon the complainant against her express protestations, as the complainant now alleges, but may have been a more subtle form of sexual solicitation or advances where, in the words of one of the complainant's counsellors, the complainant felt that she wasn't truly in a position to provide her consent due to the power wielded over her by the respondent. This possible explanation would be much more consistent with both the counsellor's evidence and the doctor's records. It also would be more consistent with the reply filed by the complainant with the Commission in November 2004, in which no reference is made to any physical coercion by the respondent, but instead the complainant's allegations are couched in the language of psychological coercion premised upon a differential power dynamic. However, I cannot simply invent explanations or scenarios that run directly counter to the clear and express evidence given by the complainant before me. As a result, I need to assess the credibility and reliability of the complainant's evidence that she was forcibly sexually assaulted against her clearly expressed will, and it is this version of events that I find not to be credible or reliable in the context of the totality of the evidence.
52Yet a further inconsistency in the complainant's evidence relates to her testimony regarding the commencement of the sexual solicitations and advances by the respondent. As noted above, all parties agree that the sexual interaction between the complainant and the respondent commenced in 1997. However, the complainant's evidence is that the first incident occurred when the respondent called her to come to his hotel room when his second marriage ended and that the respondent was hospitalized shortly after this incident. The complainant's evidence is that the second incident occurred at her place of business after the respondent had left the hospital. The problem with this evidence is that the events to which the complainant is referring occurred in 1999, and not in 1997. The respondent's evidence is that he left his wife in early 1999 and checked into a hotel, from which he was removed by the police and his then wife and checked into the detox centre at the local hospital where he remained until released in April 1999. There is no evidence that the respondent left his then wife or was kicked out by his then wife at any time in 1997, nor is there any evidence that the respondent was hospitalized in 1997.
53While I appreciate that witnesses often can get confused about dates and the complainant may have thought these events occurred in 1997 when in fact they occurred in 1999, what is of greater concern to me is the complainant's evidence that the first incident of sexual solicitation or advance occurred in the context of an event that could only have happened in early 1999. This is completely inconsistent not only with the complainant's evidence that the sexual interaction began in 1997, but also with the records of the counsellor she saw in December 1999 who recorded that the sexual interaction had been ongoing for two years. The only conclusion that I can draw from this is that the first incident of sexual interaction as reported by the complainant in her evidence at the hearing was not in fact the first incident, and that the sexual interaction actually commenced in 1997 in the context of some other incident, about which I have no evidence from the complainant. The respondent's evidence is that the first incident of sexual interaction occurred in 1997 when the complainant was visiting him at his hair salon in Balmy Beach plaza and he was showing her an empty store for which he had been given the keys by the owner. The respondent's evidence is that this empty store became a regular place for consensual sexual contact between himself and the complainant. The complainant's evidence is that she does not recall any details of sexual contact in this empty store, stating that she "does not recall all of the details of that time".
54Then there is the matter of the respondent's erectile dysfunction ("ED"). The respondent's current wife provided evidence regarding his ED in response to my questions, and provided this evidence in a sensible and straight-forward manner. I have no hesitation in accepting this evidence. This witness's evidence is that the respondent's ED began in early 2001, with the respondent unable to maintain an erection and unable to penetrate her. In May 2001, the respondent went to see his doctor and was prescribed medication. However, even with this medication, a lot of foreplay was required in order for the respondent to get an erection and many times he was still unable to penetrate because he could not maintain his erection. The respondent used this medication for about a year and stopped taking it in 2002 or 2003. After the respondent stopped taking the medication, he once again was unable to maintain an erection and there was no penetration. This has continued to the present day.
55Obviously, this evidence stands in stark contrast to the complainant's evidence that the respondent was sexually assaulting and penetrating her during the period that the respondent suffered from ED from 2001 until March 2004. When asked about whether the respondent suffered from ED and couldn't perform at various times, the complainant's response was that she "would never say that [the respondent] had a problem". It is possible that the respondent was unable to sexually perform with his wife, but nonetheless was able to sexually assault and penetrate the complainant at the same time. It is possible that the respondent may have taken medication in order to penetrate the complainant. However, I need to base my findings upon the balance of probabilities, and not upon speculation or mere possibilities. In this case, I find it implausible that the respondent was able to sexually assault and penetrate the complainant during the period when he suffered from ED, and when added to the other inconsistencies, implausibilities and improbabilities that I already have described in relation to the complainant's evidence, I find that this did not happen as alleged.
56There also are significant gaps in the evidence presented on behalf of the complainant. As noted above, the hospital psychiatrist to whom the complainant alleges she reported sexual advances by the respondent in 1998 and 1999 was not called to testify, and only an incomplete selection of his records was submitted into evidence. In 1999, the complainant was referred to a counsellor by her family doctor after allegedly reporting sexual abuse, but the family doctor wasn't called to testify, nor were any of this doctor's records submitted into evidence, nor was any explanation provided for this gap. The complainant testified that she was advised by Dr. Lam, a Chinese medicine practitioner in Toronto with whom she was studying, to call the police about the respondent's conduct and that she did call the police although she didn't follow through with a report, but no evidence to this effect was forthcoming from Dr. Lam, who was not called as a witness. The complainant also testified that she told at least two friends about the alleged sexual abuse, one of whom was present when the complainant reported her allegations to the police in 2004, yet neither of whom was called to testify, again with no explanation provided. Nor did the complainant produce any statement that she may have given to the police. The records of the first counsellor seen by the complainant were produced only in the course of the hearing, and as discussed above no order was sought to compel production of the records maintained by the Sexual Assault Centre. In order to decide this case, I do not need to draw any adverse inference from the failure to call these various witnesses or produce these various documents, but I raise these gaps in the evidence in further support of my determination that I do not have sufficient credible and reliable evidence upon which to base any finding that sexual solicitations or advances were made as alleged by the complainant in her evidence before this Tribunal.
57In addition, the complainant sent various notes and letters to the respondent over the years. In one letter dated June 13, 2000, the complainant states, "I wish to thank you for all the teaching, training, confidence and support to myself, my husband and my students", and she signs the letter "with deepest respect". This is followed by a letter dated June 24, 2001, in which the complainant states, "I wish to take this opportunity to thank you for your assistance and support in our lives", which is again signed "with deepest respect". In a further letter dated August 14, 2001, the complainant states, "I have allowed pride, doubt, confusion and conflict to almost destroy our relationship and to add to all this I was in complete denial that I was responsible for this destruction", with the letter signed "respectfully".
58The complainant's explanation for these letters is that they were written at a time when she was being abused and brainwashed by the respondent. This does not accord with the surrounding evidence. The first of these letters was written less than six months after she had reported to a counsellor in December 1999 that the abuse had stopped. The complainant had moved her business to her home by the time of the latter two letters, and was not working with the respondent again until December 2001.
59The complainant also provided the respondent with a lengthy typewritten note entitled "Becoming Nothing" sometime in late 2003 or early 2004. This note includes statements such as "I will always remember the moments that we shared with deep love and gratitude", "I am thankful for all that you have given me" and "I know how many would love to be where I am given the opportunity". I do not agree, as suggested by Commission counsel, that this note represents a woman who is prostrating herself in front of her abuser. Rather, I see this as the note of a woman who has doubts about her own abilities in the field, who is expressing her feeling that she is not living up to the standard set by the respondent, and who is sharing her gratitude for the respondent's guidance and teaching.
60I also wish to address the matter of an unsigned typewritten letter sent to the husband of one of the tai chi instructors who worked with the respondent. Both the letter itself and the envelope in which it was sent were introduced into evidence before me. While there was some initial confusion as to the date upon which the letter was post-marked, I accept the evidence of the respondent's wife, who spoke with a Canada Post representative, that the post-mark indicates that the letter was sent on February 4, 2005. The letter can only be described as a vicious attack on the respondent, including allegations that he "has sexually molested numerous women in the area", "is a known drug addict and alcoholic", "is under Criminal investigation", "targets married women, intelligent and women who are currently struggling with some concerns", "uses brainwashing, mind control, sexual abuse and threats to keep the women under his control" and "is a very dangerous man and no woman or child is safe as long as he is around".
61While initially displaying some reluctance to acknowledge that the handwriting on the envelope belongs to her, the complainant ultimately did not seriously dispute this. The complainant has a peculiar way of making her "G"s in a manner that more closely resembles the numeral "6", and this and other aspects of the handwriting on the envelope are consistent with other acknowledged samples of the complainant's handwriting. I find that it is in fact the complainant's handwriting on the envelope.
62The complainant also maintained that she had no involvement or role in the preparation of the letter. In this context, the complainant ventured that it was "quite possible" that the envelope was left at the centre after she left, as she was involved in addressing envelopes to clients or prospective clients for various mail-outs. I find this explanation to be dubious at best. I accept the evidence of several witnesses that a pre-stamped envelope of this nature (the stamp is actually printed right onto the envelope) can only be purchased at the Post Office, and is not the kind of envelope that was used at the centre. I also reject as extremely implausible the implication of the complainant's evidence that some unknown person, perhaps the respondent himself, prepared this letter and then put it into an envelope upon which the recipient's address had been written by the complainant at least one year previously.
63If there was any remaining doubt that the complainant is the author of the letter, in my mind any such doubt is resolved by the content of the letter, which is entirely consistent with various allegations raised by the complainant in the course of this proceeding. One example in particular is telling. The letter includes an allegation that "the Psychiatrist who was working with [the respondent] kicked him out of his office because he knew how disturbed [the respondent] is and he also knows that he is unwilling to change". On cross-examination, the complainant acknowledged that she knew that the respondent had been working with a psychiatrist, but said that she didn't know if this relationship had been terminated. Subsequently, the complainant's reply to the respondent's response dated November 9, 2004 was introduced into evidence, in which the complainant expressly alleges that the respondent "was thrown out of his psychiatrist's office".
64I find that not only is it the complainant's handwriting on the envelope, but also that the complainant is the author of this letter. With regard to the complainant's testimony on this point, either she wrote and sent this letter and now honestly does not recall doing so, or she knows that she wrote and sent this letter and was not prepared to admit this. Neither possibility is of assistance to the complainant in my assessment of the credibility and reliability of her evidence.
65Before leaving this section, I wish to address one final point. The respondents provided evidence that on several occasions the complainant made the statement, "If you ever get rid of me, I will destroy you". The respondent testified that the complainant made this statement on several occasions starting in 2003, including on one occasion in front of her husband. For his part, the complainant's husband recalls the complainant telling the respondent that she could destroy him. Evidence also was provided by the respondent's spouse, which I accept, that she picked up the phone on one occasion to make a call and overheard the complainant saying to the respondent, "If you ever try to get rid of me, I'll ruin you". On cross-examination, this witness acknowledged that she had no context for this comment, as she had not heard what led up to the comment or what transpired afterwards.
66The respondents urge me to interpret this as the comment of a jealous and possessive woman, who feared that her role in the respondent's business was being lessened or displaced by the hiring of other staff, with the implication being that when the complainant received the Record of Employment and perceived that this was the respondent "getting rid of" her, she set about manufacturing spurious allegations of sexual abuse in order to destroy the respondent.
67I acknowledge that there is a certain amount of evidence to support that the complainant was jealous and possessive of her role in the respondent's business and that she viewed other staff and instructors with suspicion. And clearly on the basis of the evidence, including the evidence of the complainant's own husband, I accept that the complainant made the statements as alleged. But that does not lead necessarily to the conclusion that the complainant was expressing an intention to manufacture spurious allegations against the respondent, as opposed to raising real issues that could "destroy" or "ruin" him. While I have found the complainant's allegations of forced sexual assault to be unreliable, this does not mean that I have concluded that she deliberately manufactured this evidence knowing it to be false in order to get her revenge against the respondent. To the contrary, my impression of the complainant when she was giving her testimony is that she honestly believed it to be true, and doubtless will continue to do so despite my findings in this decision.
B. Similar fact witnesses
68I will deal briefly with the two similar fact witnesses who testified before me. During the course of the hearing, the respondent challenged the admissibility of this evidence. After hearing full argument on this point, I ruled that I would admit the evidence of these two witnesses, with the extent of any reliance on this evidence and any weight that may be given to this evidence to be reserved for my final decision.
69The first similar fact witness is a woman who was married to the respondent from 1994 to 1999. I ruled that I would only hear evidence in relation to any improper sexual solicitations or advances that preceded the marriage. This witness testified that the respondent kissed her sometime in 1991 after a tai chi class he had taught. This witness said that she didn't think this was right because both she and the respondent were married at the time, and she says that she told the respondent that she didn't want to do that. This witness states that she later hurt her back and was invited by the respondent to his centre to get a treatment. She says that the respondent undressed her behind a screen, despite her telling him that she was uncomfortable with this. She says that she expressly told the respondent that she didn't want to have sex, but the respondent responded by taking her clothes off and having sex with her. This witness states that she did not resist physically in any way. This witness states that she subsequently had sex with the respondent, and doesn't recall telling him that she was uncomfortable or that she didn't want to have sex. On cross-examination, she agreed that her sexual relations with the respondent from this point forward were mutual.
70There was some disturbing evidence given by this witness in relation to the respondent's conduct during the course of their pre-marriage relationship, that included inflicting physical pain on her while having sex, inserting objects into her vagina, pushing her, hitting her, throwing things at her and yelling at her. Despite the respondent's denials, I found this witness to be credible and I do not find that she had any compelling reason to fabricate this evidence.
71The second similar fact witness testified that she first met the respondent in 1991. One night, she received a call from the respondent asking her to come to his hotel room, where they engaged in hugging and kissing. This witness states that the respondent attempted to convince her to have sex, but she didn't want to do that because the respondent had no protection. The respondent told her that he could "tell" if people had STD's and that the two of them didn't. This witness states that she continued to tell the respondent that she didn't want to have sex with him, but he told her not to worry and they had sex. On cross-examination, she denied that she had mixed feelings about having sex with the respondent, but indicated instead that she just didn't know how to get out of the situation.
72This witness testified that the next time she had sex with the respondent was at her home in the afternoon. On this occasion, she says that she expressed that she was uncomfortable having an affair with someone who was married, to which the respondent replied that his then wife knew that he was having an affair and that this was okay with her. This witness states that she trusted the respondent because he was charming and he was her teacher. On cross-examination, she said that she was fighting with herself on moral grounds on this occasion, but she acknowledged that there was some attraction there.
73This witness continued having a sexual relationship with the respondent until 1993, which she described as consensual. I also was provided with evidence and a tape recording of several voicemail messages left for this witness by the respondent in late November 1993 after she decided to discontinue her relationship with him, in one of which the respondent said that he would "kick [her] ass". These messages were left on the days prior to and of the death of the respondent's first wife, and the respondent was clearly intoxicated. I do not find that these messages have any relevance to the matters at issue before me.
74While I find both of these witnesses to be credible, that does not, however, mean that their evidence properly can be relied upon by me to support the complainant's allegations of forcible sexual assault that I already have found to be replete with inconsistencies and implausibilities. The evidence of these two similar fact witnesses, however credible and reliable in and of its own right, cannot serve to make credible or reliable evidence of the complainant which I already have found to lack credibility and reliability.
C. The credibility of the respondent's evidence
75I also find the respondent's evidence to be lacking in credibility. I found the respondent's evidence to be extremely self-serving at times, particularly in relation to his claim that he and the complainant were "peers" or "colleagues" once she had completed the course in Oriental medicine taught by the respondent. Based upon the totality of the evidence, it is clear that the respondent was regarded and indeed regarded himself as the "master" and that the complainant and other teachers and practitioners were there to be instructed by and learn from him.
76I also disbelieve the respondent's testimony at the hearing that the sexual interaction between himself and the complainant ended in 1999. I find that the sexual interaction between the respondent and the complainant continued until at least 2003. The evidentiary record before me is replete with examples where the respondent clearly stated during the Commission's process that the relationship continued during the period when the complainant worked for him. In his response to the complaint dated October 5, 2004, the respondent states that his "intimate relationship" with the complainant was not just confined to "our workplace", which he later distinguishes from the complainant's workplace. The only workplace that could be described as "our workplace" is the workplace at the Balmy Beach plaza where both the respondent and the complainant worked from December 2001 to March 2004. Further in this document, the respondent makes reference to events that occurred during the period when the complainant was his employee from July 2002 to March 2004, and then states "we sometimes made love after such confusing moments". Still further, the respondent states that he suffers from E.D. and has not renewed his prescription since the beginning of 2003, "therefore I have not performed sexually with [the complainant] in any significant way but to please her the best way I could at that time". This is a clear statement that the respondent was sexually intimate with the complainant after he was diagnosed with E.D. in May 2001, and even after he stopped taking his medication in early 2003.
77The respondent made further admissions in the witness statement that he gave to the Commission investigator. The respondent admitted: that he continued to have a sexual relationship with the complainant after he expanded the Hoita Kokoro Centre and added tai chi, which the evidence before me indicates was sometime in 2002 (Q. 12-13); that he went back to a sexual relationship with the complainant after he had told her husband that it would stop, which was sometime in 2001 or 2002 (Q. 15-18); that his affair with the complainant had ended in 2003 (Q. 44); and that he was still in a sexual relationship with the complainant in 2003 (Q. 53).
78The respondent's evidence is that he was in such a distressed state upon receiving the complaint that he was unable to think clearly, and that this state of distress and confusion continued throughout the Commission's investigation which took place a year and a half later. Further, the respondent states that it was only in the context of preparing for this hearing, when he sat down and wrote out a chronology, that it became clear to him that his sexual relationship with the complainant had ended in 1999 and not in 2003.
79This evidence lacks any credibility. While I don't doubt that the respondent experienced some distress upon receiving the complaint, I do not accept that this distress would have been of such magnitude or lasted for such a prolonged period of time that it would affect his ability to articulate when his sexual relationship with the complainant ended. While witnesses are often confused about dates, I find it implausible that the respondent would make a mistake of four years in identifying the end of his sexual relationship with the complainant, and would mistakenly identify their sexual relationship as having continued in the context of events that clearly post-dated 1999. The respondent also alleged first that he simply signed his witness statement without reading it because he was so distressed, and then when it was pointed out to him that he had made corrections to the statement, he alleged that he only skimmed the document to identify major errors. To the contrary, the number and nature of the respondent's corrections to this statement indicate that he read the document carefully.
80As a result, I find that the respondent had a sexual relationship with the complainant while she was employed by him. However, this alone does not provide a sufficient basis upon which to found a Code violation. I am mindful of the following passage from Cugliari v. Telefficiency Corp. (No. 2) (2006), 56 C.H.R.R. D/27, 2006 HRTO 7 at paras. 226-7, which I adopt in its entirety:
The delicacy of a superior or supervisor pursuing a sexual interest in an employee requires little explanation or elaboration. . . . 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. . . . In my opinion, the greater responsibility rests on the superior or supervisor, and not the employee. . . . 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.
81While the principles articulated in Cugliari do not strictly prohibit such a relationship, a strong onus quite correctly is placed on an employer to ensure that a relationship with an employee is truly consensual.
82While I have not accepted the complainant's allegation that she was forcibly sexually assaulted by the respondent, I am not prepared to dismiss her evidence in its entirety, particularly with regard to her allegation that the respondent made sexual advances toward her during the period when she was employed by him.
83From my review of the totality of the evidence, it is clear that there was a sexual relationship between the respondent and the complainant during the period of her employment. The question is whether this sexual relationship was truly consensual or, to use the language of the Code, "unwelcome".
84In this regard, in addition to allegations about forced sexual assault, the complainant also testified that while she was employed by the respondent, there were sexual overtures from him, comments about what she was wearing, touches and brushing up against her, and he always seemed to be able to corner her. The complainant's evidence is that these sexual advances were initiated by the respondent and were not welcome. These advances occurred after the complainant had told her husband that the respondent had made sexual advances towards her during the late 1990's, and after the respondent had promised the complainant's husband that he would not continue to do so.
85The fact that the complainant told her husband about the respondent's sexual advances and her husband subsequently spoke to the respondent about this, supports the conclusion that any consensual sexual relationship between the complainant and the respondent that may have occurred between 1997 and 1999 was at an end from the complainant's point-of-view. This supports that any advances by the respondent directed toward a continuation of the sexual relationship while the complainant was his employee were unwelcome to her. Further, I find that the respondent knew or ought to have known that his sexual advances were unwelcome to the complainant, particularly in light of her disclosure to her husband and her husband's subsequent discussion with the respondent. I have no testimony from the respondent to the contrary, as he has denied that such a sexual relationship even existed while the complainant was his employee.
86In these circumstances, I find that sexual solicitations and advances were made by the respondent toward the complainant during the period from July 2002 until at least 2003, which were unwelcome to the complainant and which the respondent knew or ought reasonably to have known were unwelcome.
D. Other aspects of section 7(3)(a)
87During the period from July 2002 until March 2004, the respondent was the complainant's employer, and as such he clearly was in a position to confer, grant or deny a benefit or advancement to the complainant. Accordingly, in light of my finding above that sexual solicitations and advances were made by the respondent during this period which the respondent knew or ought to have known were unwelcome, a violation of s. 7(3)(a) of the Code has been established.
88As the person who made the sexual solicitations and advances, the respondent John Hoita is directly liable for this violation of the Code. In addition, as John Hoita is the principal of the corporate respondent, Hoita Kokoro Centre Inc. is deemed to be liable for Mr. Hoita's conduct pursuant to s. 45(1) of the Code.
89With regard to the sexual interaction between the complainant and the respondent during the period from 1997 to 1999, I have found the complainant's evidence not to be credible or reliable, leaving me with the respondent's evidence affirming a sexual relationship during this period that was consensual. Accordingly, I do not find any violation of s. 7(3)(a) of the Code in relation to this period.
90I further find that there was in fact an interruption in the sexual interaction between the complainant and the respondent during the period from late 1999 until sometime after December 2001, when the complainant moved her business into the respondent's premises. There is a dispute between the parties as to whether the respondent was the complainant's "employer" during the period from December 2001 until July 2002 when she was renting an office from him. I do not need to resolve this dispute, as it is unclear from the evidence as to precisely when the sexual interaction between the respondent and the complainant resumed. Since it is clear from the respondent's own admissions that the sexual relationship had resumed at least sometime during the period of the complainant's employment by him, I do not find it necessary to make any finding as to whether the sexual relationship overlapped with this interim period.
2. Section 7(3)(b): Reprisal for rejection of sexual solicitation or advance
91Section 7(3)(b) of the Code provides as follows:
Every person has a right to be free from:
(b) a reprisal or 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.
92In the pleadings filed by the Commission and the complainant and in response to my questions following the Commission's opening statement, there are several alleged threats of reprisal made by the respondent; however, no evidence was provided in relation to many of these alleged threats.
93In her examination-in-chief, the complainant was asked twice what would happen to her if she did not comply with the respondent's sexual demands, and her response was that she saw what happened to others who left the respondent to pursue their training elsewhere, which was that the respondent would "diss" their reputations. The complainant's evidence the second time the question was asked was that she understood that she would be "blacklisted" and would not have a career in the field of acupuncture. In my view, the fact that the complainant believed that she might suffer a reprisal based upon her observation of how others were treated by the respondent does not, in the specific circumstances of this case, constitute a "threat of reprisal for the rejection of a sexual solicitation or advance" within the meaning of s. 7(3)(b) of the Code.
94A similar observation can be made regarding the complainant's evidence that the respondent propositioned her at an acupuncture conference held in Toronto on March 28, 2004. The complainant's evidence is that, after inviting her to go to a hotel room with him, the respondent proceeded to blame her for the health of a patient, saying that the complainant had done something to make her worse. The complainant testified that she assumed this was retaliation for not going to a hotel with the respondent. The respondent denies propositioning the complainant at this conference, and denies any interaction of the nature described by her. In light of my general observations regarding the reliability of the complainant's evidence, I am not prepared to find either that the proposition was made as alleged or that the respondent threatened or engaged in any retaliatory conduct.
95The only actual threat about which the complainant gave evidence is the alleged threat that the respondent would kidnap her son if she resisted his sexual demands. While the complainant clearly has a subjective fear that this might happen, I do not believe that any such threat was actually made by the respondent. The counsellor whom the complainant saw at the Sexual Assault Centre actually recalled discussing this fear with the complainant sometime after the complainant left her employment with the respondent. This witness's evidence is that the complainant experienced terror when she imagined the respondent's reaction to her pressing her sexual assault allegations and the expression of a deep-seated fear that the respondent would take her child. However, this witness did not testify that the complainant said at that time that the respondent had actually threatened to take her child.
96Accordingly, I find no basis to support the allegations of a violation of s. 7(3)(b) of the Code.
3. Section 7(2): Sexual harassment
97Section 7(2) of the Code provides as follows:
Every person who is an employee has the right to freedom from harassment in the workplace because of sex by the employer or agent of the employer or by another employee.
98"Harassment" is defined in the Code as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome": see s. 10(1).
99In response to my questions following her opening statement, Commission counsel stated that the same evidence was being relied upon to support the complainant's allegations of sexual harassment as was being relied upon to support a violation of the sexual solicitation and advances provision.
100For all of the reasons already canvassed at length, I do not find that the complainant has provided credible and reliable evidence regarding the allegations of sexual assault, abuse, solicitations or advances as made in her testimony at the hearing. However, I have found that the respondent, despite his denials, did engage in a sexual relationship with the complainant during the period when she was his employee. I have found that this sexual relationship was unwelcome to the complainant and that the respondent knew or ought reasonably to have known that his conduct was unwelcome on the basis of the complainant's clear position that the respondent's sexual advances were unwelcome and in the absence of any contrary evidence from the respondent. I also find, based upon admissions made by the respondent in material he filed with the Commission and in the witness statement he gave to the Commission investigator, that the sexual relationship between the respondent and the complainant took place in the workplace. On the basis of these findings, I find that the respondent also violated s. 7(2) of the Code as a result of the sexual relationship between himself and the complainant while she was his employee during the period from July 2002 until at least 2003.
101For the same reasons as set out above, I find the personal respondent John Hoita directly liable for this infringement of the Code. While s. 45(1) of the Code does not deem a corporation to be liable for harassment, I find the corporate respondent Hoita Kokoro Centre Inc. to be liable on the basis that the personal respondent was the directing mind of the corporation: Curling v. Torimoro [1999] O.H.R.B.I.D. No. 17 at para. 87.
4. Section 5(1): Gender discrimination
102Section 5(1) of the Code provides, in part, as follows:
Every person has a right to equal treatment with respect to employment without discrimination because of . . . sex . . .
103In response to my questions following the Commission's opening statement, certain allegations made in the pleadings filed by the Commission and the complainant were pointed to as providing a basis for a finding of a violation of s. 5(1) of the Code in addition to the sexual solicitations and advances. However, once again, no evidence was provided in relation to many of these allegations.
104From the evidence actually given by the complainant at the hearing, the principal bases upon which she appears to be alleging that she experienced gender discrimination in violation of s. 5(1) of the Code are: that the respondent forced her to work long hours; that the respondent treated her in a demeaning manner; and that she was forced to run errands for the respondent.
105With regard to the hours worked by the complainant, I accept the evidence of the respondent's wife that, at the time when it was agreed that the complainant would become an employee of the respondent, it was agreed that she would be free to continue to come and go from work as she had done when she was renting from the respondent and running her own business from his premises. I further accept the evidence of the respondents' witnesses that the complainant was told by the respondent and others to go home rather than continue to work, but that she refused to do so. Accordingly, I do not find that this allegation is supported by the evidence.
106With regard to the manner in which the complainant was treated by the respondent, the evidence is mixed. The complainant's husband testified that at the end of the day, the respondent would review with the complainant what had happened during the day and would "lecture" and "berate" her about what she had done wrong. Another witness called by the complainant testified that the respondent treated the complainant disrespectfully and criticized her in front of other students; however this witness was vague in terms of providing any specific examples. This witness testified that the respondent treated the complainant differently from "male instructors"; however, the evidence before me is that the other instructors were women with the sole exception of the complainant's husband.
107In contrast, the respondent's witnesses painted a picture of the respondent providing correction and instruction to the complainant and to themselves as instructors in a very respectful manner, emerging from the back of the dojo to correct a student's technique and then giving a little bow and receding to the shadows. The respondent denied that he treated the complainant in a demeaning or disrespectful manner or that he lectured or berated her, although he did testify that the complainant was slow to pick up on administrative tasks.
108In the end, I do not believe that I need to resolve this conflict in the evidence because there is no reliable evidence that, even if the respondent did lecture or berate the complainant or was disrespectful to her in class, this conduct was because of or related to the complainant's gender. The only evidence in this regard was the evidence of the complainant's witness who contrasted the treatment of the complainant with the respondent's treatment of "male instructors". However, I do not find this evidence to be sufficiently reliable to form the basis of a finding of gender discrimination in the absence of any evidence of specific examples.
109The same point can be made about the complainant running errands for the respondent. The evidence in relation to this allegation was extremely vague, and there was no evidence to indicate that any such requirement was related to the complainant's gender.
110Before concluding this section, I wish to address a few final matters. First, a significant amount of time was spent at the hearing in response to an allegation made by the respondent's second wife that during the period when she was apprenticing with him between 1993 and 1996, the respondent participated in sexual jokes and innuendoes with male clients. Without in any way condoning such behaviour if it indeed happened, the simple fact is that there is no evidence from the complainant that anything like this happened while she was employed by the respondent.
111Second, an allegation was made in the pleadings that the complainant found used condoms in the workplace; however, no evidence about this was provided by the complainant. During cross-examination of one of the respondent's witnesses, there was a suggestion that the complainant had found a used condom in the garbage in the respondent's office on one occasion, but the complainant herself never provided evidence on this point.
112Finally, allegations were raised during the course of the hearing that the respondent made comments about the complainant's bi-polar disorder. I find the complainant's evidence on this point too vague to sustain a finding of a Code violation on this basis. The complainant alleged that the respondent made it obvious to others that she was mentally ill and made jokes about her mental illness, but she acknowledged that she "has no specifics". The closest the complainant could come was an allegation that the respondent would say that she was bi-polar and on one of her highs or lows and they would have to forgive her, without providing any context or specifics. While there was evidence from several witnesses that the complainant shared with them the fact that she suffered from bi-polar disorder and one witness testified that the respondent mentioned this on one occasion, there was no evidence to support the complainant's allegation that the respondent made jokes about her disorder.
5. Section 8: Reprisal for claiming Code rights
113Section 8 of the Code provides as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
114The complainant alleges that she experienced reprisal under this section on the basis that: the respondent sent her invoices for training after she left her employment with him; he made phone calls to her home and sent her a letter; he was involved in getting the complainant's clients to write negative letters about her; he attempted to contact her sister; and he sought disclosure of the complainant's file from the local Women's Centre.
115With regard to the invoices and letter sent and phone calls made to the complainant after she left her employment, all of these actions were taken by the respondent prior to the complainant filing her complaint on September 21, 2004. There is no evidence that the respondent otherwise had notice that the complainant was seeking to claim or enforce any rights under the Code.
116A similar comment could be made about the negative letters from clients that the complainant alleges she received. The only such letter that was introduced into evidence was a letter from a client dated March 28, 2004 which can only be described as supportive of the complainant, including a statement that the treatments this client received from the complainant were better than she was receiving from the respondent. The complainant claimed to have further such letters, but none were produced.
117With regard to the alleged call to the complainant's sister, I have only the complainant's evidence that a phone call was made to her sister in January 2005 and that the phone number of the Hoita Kokoro Centre came up on the call display. The phone call was not answered and no message was left. I do not find any basis in this evidence to support an allegation of reprisal.
118With regard to the final allegation, I have a letter dated October 10, 2007 from the respondent to the CICB which apparently followed up on an electronic meeting involving the respondent's then agent. In this letter, the respondent expresses a concern that evidence submitted by the complainant or her assistant to the CICB and the Commission may have been tainted, and requests "full disclosure of all information presented by the complainant before this board to determine if that information is free from contamination". Without in any way commenting upon the respondent's allegations about tainted or contaminated evidence, it is entirely appropriate for a party to seek disclosure in a proceeding before an administrative tribunal. I see nothing in this letter that would support an allegation of reprisal.
119Accordingly, the complainant's allegations of a violation of s. 8 of the Code are dismissed.
REMEDY
ESA settlement
120Prior to filing her human right complaint in September 2004, the complainant contacted the Ministry of Labour and filed a claim under the Employment Standards Act, 2000 ("ESA"). This claim ultimately was resolved by a settlement under s. 112 of the ESA, involving a confirmation of termination pay and vacation pay already provided to the complainant, a retraction of the invoices sent to the complainant after she left her employment and written confirmation that the complainant did not owe the respondent any monies or have property belonging to him or his business, and an additional $1,000 to resolve "any other financial obligations" to the complainant. In confirmation of this settlement, the complainant signed a form authorizing the Employment Standards Officer to accept the monies owing under the settlement "in full and final settlement of my claim made pursuant to the Employment Standards Act, 2000" respecting her employment with the respondents.
121The respondents take the position that this settlement bars the complainant from seeking any remedy in this proceeding. I disagree. On the basis of the settlement documents, it is clear that this settlement was solely for the purpose of resolving the complainant's claims under the ESA as expressly stated in the settlement confirmation document signed by her. In my view, the term "any other financial considerations" set out in the settlement letter refers to any other financial considerations under the ESA. While parties are free to enter into settlements to resolve human rights claims, clear language to this effect in the settlement documents is required in order to bar a person from making a human rights complaint. No such clear language exists here, and I do not accept the respondent's oral testimony almost four years after this settlement was effected that he understood that this settlement resolved all claims of any nature, including a claim under the Code.
General damages
122The complainant testified that she has experienced significant distress as a result of the respondent's conduct, and the complainant's distress was evident during the course of this hearing. The problem, however, is that this distress is premised upon a subjective belief that the respondent's conduct was in the nature of forced sexual assault, which I have found not to be credible or reliable. As a result, I find myself unable to rely upon the complainant's evidence regarding the emotional impact of the respondent's conduct on her.
123The finding of a violation of the Code that I have made in this decision is premised upon the existence of a sexual relationship between the respondent and the complainant during the period from July 2002 until at least 2003 when she was employed by him, and the fact that the evidence does not support that this relationship was truly consensual. Given this more limited finding, I find that an award of general damages in the amount of $5,000 is appropriate.
Mental anguish damages
124In addition to an award of general damages, the Commission and the complainant seek an award of damages for mental anguish. Pursuant to s. 41(1)(b) of the Code, an award of mental anguish damages requires a finding that "the infringement has been engaged in willfully or recklessly". Given the limited basis upon which I have found a Code infringement, I have no evidentiary basis to support a finding that the infringement was engaged in willfully or recklessly. Accordingly, no award of damages for mental anguish will be made.
Special damages
125The complainant seeks special damages for lost income for the period from when she left her employment in March 2004 until she obtained new employment in August 2004. This claim is not advanced by the Commission.
126I do not find a sufficient basis in the evidence to support a finding that the complainant left her employment because of sexual solicitations or advances made by the respondent. The respondent's admissions in the witness statement that he gave to the Commission investigator indicate that the sexual relationship ended in 2003. I have no credible or reliable evidence upon which to base a finding that the sexual relationship continued beyond this.
127I also am cognizant of the evidence that at the very least, there was a discussion about the complainant going on compassionate leave as a result of the litigation that she was involved in relating to the childhood sexual abuse by her uncle, the fact that her father was not well and she wanted to spend more time with him, and her desire to spend more time with her infant son. Whatever the precise nature of these discussions and whether or not the complainant agreed to take this compassionate leave, I find that the evidence supports that the respondent understood that the plan was for the complainant to take this leave. Accordingly, the respondent instructed his accountant to prepare a Record of Employment that was sent to the complainant sometime in late March 2004. I find that it was the receipt of this document that precipitated the complainant's attendance at the respondent's premises with the police to remove her equipment and sever ties with the respondent.
128Accordingly, I do not find that the evidence supports that the complainant left her employment with the respondent because of his sexual solicitations or advances and I find no basis to support an award of special damages.
Public interest remedies
129The evidence indicates that the respondent suffered from a very serious medical condition in 2007, which resulted in the closing of the Hoita Kokoro Centre. In these circumstances and in light of the limited basis upon which I have found a violation of the Code, I do not believe it to be appropriate in this case to award any public interest remedies.
ORDER
130For all of the foregoing reasons, I make the following order:
a. that the respondents are found to have infringed ss. 7(2) and 7(3)(a) of the Code as a result of unwelcome sexual solicitations and advances that were made by the respondent John Hoita toward the complainant during the period from July 2002 until at least 2003 while the complainant was employed by the respondents;
b. that all other allegations in the complaint are dismissed; and,
c. that the respondents are jointly and severally liable to pay to the complainant the sum of $5,000 as general damages within 30 days of the date of this decision.
Dated at Toronto, this 11th day of June, 2008.
"Signed by"
Mark Hart
Vice-Chair