HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Teri Ratneiya
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Daniel & Krumeh and Paul Krumeh
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed As: Ratneiya v. Daniel & Krumeh
AppearanceS BY
Teri Ratneiya, Complainant ) On Her Own Behalf
Ontario Human Rights Commission ) Bay Ryley, Counsel
Daniel & Krumeh and )
Paul Krumeh, Respondents ) Granville Cadogan, Counsel
INTRODUCTION
1The complainant, Teri Ratneiya, while a student in a law clerk program, was placed at the respondent law firm, Daniel & Krumeh. She was later hired as a law clerk with the firm. She filed a complaint with the Ontario Human Rights Commission (the “Commission”), dated December 22, 2005, alleging that while employed by the respondents she was subjected to discrimination on the basis of sex, sexual harassment, sexual solicitation, and reprisal for the rejection of a sexual solicitation by the personal respondent, Paul Krumeh, contrary to sections 5(1), 7(2), 7(3)(a), 7(3)(b) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Commission referred the complaint to the Tribunal by letter dated December 18, 2007.
2In her complaint, the complainant alleges that the personal respondent touched her inappropriately on three occasions and subjected her to inappropriate comments. She alleges that, in the beginning of August 2005, the personal respondent grabbed her breast and she pushed him away and told him not to touch her. The personal respondent then began to avoid her. On August 18, 2005, he notified her that she would no longer be employed at the law office, except for on an on-call basis as “it was not working out”. The following day she resigned.
3The personal respondent denies the allegations and states that he maintained a very professional relationship with the complainant. He alleges that he often voiced his dissatisfaction with her performance and, by the first week of August 2005, he informed her that he was not pleased with the quality of her work and reduced her hours. Her performance continued to decline and, during the second week of August 2005, he made up his mind that it was best that he place her on call and, on or about August 15, 2005, he informed her of that. He agrees that she resigned on August 19, 2005.
DECISION
4I find that the personal respondent engaged in inappropriate comments and touching, thereby subjecting the complainant to discrimination on the basis of sex, sexual harassment and sexual solicitations or advances, contrary to sections 5(1), 7(2), 7(3)(a) and 9 of the Code. I also find that the personal respondent subjected the complainant to reprisal, contrary to sections 7(3)(b) and 9 of the Code, when he reduced her hours from one day per week to “on call”, thereby effectively terminating her employment.
5As a result of the above violations, the respondents are jointly and severally liable to pay the complainant $25,000.00 as compensation for loss arising out of the infringement, including injury to dignity, feelings and self-respect and $1,536.00 as compensation for lost wages. These awards are subject to pre-judgment and post-judgment interest. The personal respondent is also ordered to develop an anti-discrimination and anti-harassment policy.
Summary of Evidence
6The complainant and the personal respondent gave evidence at the hearing. There were no other witnesses. A number of documents were entered as exhibits at the hearing and were carefully reviewed by the Tribunal.
Background
7The complainant testified that she was 22 years old when she was employed with the respondents. She received a law clerk diploma from Seneca College (“Seneca”) in April 2005 and subsequently took courses at Seneca. At the time of the hearing, the complainant was in the third year of a B.A. program at Carleton University (“Carleton”).
8The personal respondent testified that he practiced law in association with his ex-wife as “Daniel & Krumeh” on Finch Avenue in Toronto. At the time of the hearing, he was in his sixth year of practice which he described as 90% family law, 2% real estate and the rest immigration.
The complainant’s placement with the respondents
9The complainant’s field placement with the respondents, which was arranged by Seneca, commenced in October 2004. The complainant testified that she worked one day per week during her placement and during the Christmas and March breaks she worked every day of the week.
10The complainant testified that shortly after her placement started, the personal respondent took her to lunch in October 2004. He paid for lunch. When asked if he offered her alcohol, she testified that he insisted, she refused and he kept insisting but she did not have any. In cross-examination, she added that he took her to lunch for her birthday, although not on the actual day of her birthday. The personal respondent denied ever taking the complainant out for lunch or offering her alcohol. He stated that he does not drink alcohol. On cross-examination, he stated that he wouldn’t take a new “employee” out for lunch.
11The complainant described the work during her placement as mostly administrative; she dealt with correspondence, drafted letters, greeted clients, took messages, filed documents in court, ordered office supplies, transcribed videos and dealt with legal aid accounts and billings.
12The complainant described the office as fairly small. Upon entering the office, there was a large desk, behind which there was an office that a third lawyer rented. Beside this first office was Ms. Daniel’s office, which she shared with an articling student. Beside Ms. Daniel’s office was the personal respondent’s office, which also had a space for a filing cabinet that contained his files. All of the offices had doors that closed. On cross-examination, she agreed her desk was close to the office that the third lawyer rented, which had a glass window, as well as Ms. Daniel’s office, and that it was a very close environment. The complainant and the personal respondent testified that there were seven individuals working at the respondent firm in 2005.
13The complainant was shown a field placement student evaluation form, dated December 1, 2004, that was completed by the personal respondent. She testified that he discussed it with her. On fifteen different areas that she was evaluated on, nine were rated “Excellent” and six were rated “Very Good”. With respect to “Overall Final Evaluation”, “Outstanding” is checked off. Under the heading “General Comments/ Suggestions” it states:
Teri has a good grasp of legal procedures, especially in the areas of Real Estate and Family Law.
She is self-motivated and unassuming.
Overall, she is good to work with and very professional in her attitude to work.
She confirmed that this matched with the type of feedback she got from the personal respondent. She testified that he was never critical of her work. If she made an error, he would correct it. She testified that “it was always constructive criticism, never harsh or demeaning, always positive.”
14The personal respondent testified that when he does evaluations, “the whole idea is to encourage them to do well in their endeavors after.” He explained that, because he mentors the students, he generally writes in such a way, regardless of what they do, to let them do whatever they want to do. For the most part, they don’t stay and they move on. In cross-examination he testified that the idea is to encourage students to move on with their careers.
15The personal respondent was asked about rating the complainant “Very Good” on the evaluation form with respect to “Knowledge of Legal Procedures” and “Knowledge of Legal Documentation”, as well as his written statement that the complainant “has a good grasp of legal procedures”. He testified that he would not have assigned such tasks as drafting legal documents and “it’s totally exaggerated.”
16The complainant was also shown a field placement student evaluation form dated March 16, 2005. She testified that the personal respondent filled it out. On the 15 different areas that she was evaluated on, five are rated as “Excellent”, nine as “Very Good” and one as “Good”. With respect to “Overall Final Evaluation” “Outstanding” is checked off. Under the heading “General Comments/Suggestions”, it states:
Teri’s knowledge of legal software has improved very well.
She is easy to work with and willing to accept supervision/direction.
There’s more room for improvement with regards to her ability to complete work on time and ability to take initiative.
Overall, Teri’s performance thus far is outstanding and we have decided to offer her full time employment.
The complainant confirmed that it matched with her understanding of how the personal respondent felt about her work. When asked what was meant by “room for improvement”, she testified that some days she couldn’t finish work on files so it was left for the next day. She explained that there was no receptionist and with doing the law clerk and the reception job, sometimes work was left for the next day. She testified that the personal respondent discussed it with her and she took it as constructive feedback and something to improve upon.
17In cross-examination, the complainant disagreed that an inability to complete tasks on time was a deficiency in her skill set. She stated that she felt that she was doing two jobs at once – reception and law clerk duties. She agreed that there was no mention in the evaluation of the fact that she had knowledge of PC Law, Divorcemate or Word, but testified that prior to March 2005, she had been learning them in school and they were used in the personal respondent’s practice.
18With respect to “Overall Final Evaluation”, it appears from the document that “Satisfactory” was checked off and then crossed out and that “Outstanding” is checked off. The personal respondent testified that he first checked off “Satisfactory” and then it dawned on him that these people usually leave, so he crossed out “Satisfactory” and checked “Outstanding”.
19The complainant was shown a letter dated March 16, 2005, signed by the personal respondent. She testified that it was a reference letter that he wrote for her. She explained that she asked him for it, just to keep on record, maybe for use when looking for employment later on or just to have. The letter states, in part, as follows:
As a placement student, she is unassuming, consistent and without reproach in all her dealings. Hardworking, intelligent, dependable and responsible, Miss Ratneiya proved to be a great asset. She undertakes duties with diligence and dedication. She has not only manifested significant resourcefulness, but takes initiative when necessary. Miss Ratneiya’s analytical skills and interpersonal skills are exceptional and emulative.
I have no doubt in my mind that Miss Ratneiya would be an invaluable asset to any organization that she would be opportuned to serve. I strongly vouch for her good character and recommend her to you without reservation.
On cross-examination, the complainant indicated that she believes she typed the reference letter but she did not participate in the drafting and had nothing to do with the actual wording of the document.
20The personal respondent testified that the complainant’s field placement ended on March 16, 2005, and the evaluation and letter of reference were created on the same day. He was asked why the reference to “more room for improvement” in the evaluation did not appear in the letter of reference. He testified that the letter of reference was originally written for another individual who was working for him and who was preparing to go to law school. He wrote the letter and kept it as a template. He believes that when the complainant approached him for a reference, he asked her to pull the file, work around it and bring it to him to sign. He testified that the complainant prepared the March 16 letter and that he did not write what the complainant was supposed to type.
21When asked why two documents were created that are essentially contrary, the personal respondent testified that the evaluation is directed to the school while “the reference letter reflects something for her own input on the file.” The personal respondent testified that he would not under any circumstances write a negative reference letter, regardless of incompetence or deficiency, because the goal is always to allow students to move on with their lives. He explained that his own thinking or philosophy is to never write a negative reference letter.
22In cross-examination, the personal respondent was asked if he would have signed the letter if he did not agree with it or if it was not accurate. He testified that he would have signed it as the idea was to help the complainant move on with her life and find a career.
23The personal respondent was shown evaluations that he had completed for two other students. In regard to one evaluation, he testified that there was no omission with respect to her performance and in regard to the second, he testified that he may have exaggerated with respect to her knowledge and grasp of legal proceedings, but otherwise, it was a fair portrayal.
Employment with the respondents
24The complainant testified that the personal respondent offered her employment around the middle or end of March 2005 on the same day that she was given a reference letter and before her placement ended. Initially she was offered full-time employment but another student was there two days per week, so she was offered three days per week and accepted. She worked Mondays, Wednesdays, and Fridays. In cross-examination, she testified that she usually left at 5:00 p.m., unless there was a real estate deal closing; occasionally she would stay a little longer. The personal respondent testified that, for the most part, the complainant’s work days remained the same but sometimes the other clerk was not able to come in and he would need help so he may have called in the complainant twice during that period.
25The personal respondent testified that he offered the complainant employment after he had placed an ad to hire a law clerk. He had about ten applicants and interviewed six. Through the interviews he discovered that most of the applicants did not have the skills in software that were set out in their résumés. The articling student sat in on the interviews and, at her prodding, he subsequently hired the complainant instead. He stated that he finally caved in and said “fine”.
26The complainant testified that most of her work was for the personal respondent. Occasionally she did work for Ms. Daniel. For the third lawyer, she would just greet his clients and tell him they had arrived. She believed the personal respondent was her supervisor. It was her first career-oriented job and she was quite happy. She earned $12 per hour. The complainant testified that she had more responsibility when she became an employee and she was given more to do.
27The personal respondent testified that when the complainant became an employee, he introduced her to “Conveyancer” software, showed her how to enter things and had her draft correspondence. With respect to supervision, the personal respondent testified that there is a distinction between when the complainant was a student as compared to an employee. When she was a student, he tended to overlook things. He would just review, correct and move on. As a worker, he was paying her. In terms of supervision, typically he would go to her desk and speak to her; occasionally he would call her into the office and have a chat with her and say “I don’t like this” or “this needs to be done.” He described his interaction with the complainant during her employment as very professional. She would come in and he would assign work. He would leave it on her desk. He would make notations indicating what he wanted to accomplish for the day. When he returned from court she might tell him who he was scheduled to meet with or, if she had finished work, she would bring it to him to review.
The allegations
28The complainant testified that, in June 2005, she went to retrieve some files located in the personal respondent’s office and he came up behind her and caressed her lower back as she bent down to get the files. She testified that she believed he said “you’re hairy”. She explained that her shirt rode up a little and he put his hand under her shirt and caressed her lower back and said it felt “hairy”. She quickly took the files and went back to her desk. She felt extremely uncomfortable and was surprised and offended. She testified that she did not tell anyone about the incident because she was afraid of losing her job if she did. In cross-examination, she agreed that the space between the personal respondent’s desk and the cabinet is very small but disagreed that it does not allow two people to pass at the same time, even when she was bending and a file cabinet drawer was extended.
29The personal respondent testified that, in his office, there is a very small cubicle containing a file cabinet that he shared with Ms. Daniel. When asked how many people can fit in that area, he explained that one person has to go in first because, apart from the file cabinet, there is a small case for stationery and, to the left, some boxes with files. When asked if one individual opened the file cabinet and stood behind it could another approach and stand behind it, he explained that one person had to come out first. In cross-examination, he indicated that there are about two steps from where one walks in the door to the file cabinet. He disagreed that two paces was enough room for two people to be standing.
30The complainant was asked about the next incident in her complaint and testified that the personal respondent asked her if she wore thongs and if they were comfortable and said they looked good on her. She explained that she was sitting at her desk and he came from behind and made the comment. She testified that he might have been able to see her thong. She felt uncomfortable. She did not remember how she responded but she did not continue the conversation. She testified that no one else was around and she believed it was just the two of them in the office.
31The complainant testified that, in July, she was working on some files and she didn’t finish some of them. She testified that the personal respondent said he should spank her for not finishing and he spanked her on her bottom. She explained that she was in front of her desk and he came up from behind her. She testified that no one else was around when it happened and she believed that no one else was in the office. In describing the spank, she said that it “wasn’t hard but wasn’t light”. She immediately took her purse and left. It was the end of the day. She believes “he said ‘bye’ and that was it.” She felt violated, offended and extremely uncomfortable. She felt like he took advantage of her. She did not complain to anyone about the incident at the time. She explained that because Ms. Daniel was married to the personal respondent she felt that she could not go to her.
32The complainant testified that she believes the last incident happened the first week of August. The personal respondent came to her desk and asked if she worked out. He put his arm around her shoulder and tried to grab her breast. She testified that she was standing in front of her desk and he came from the left of her and tried to grab, she believes, her right breast. When asked how long his hand was on her breast, she testified that she immediately pushed him away and told him she didn’t want him touching her. She told him she was offended by what he did and he apologized. She believes he apologized when it happened and the next day he said that she was looking at him differently and he apologized again. She testified that she believes no one else was in the office when it happened. She felt like she did not want to work there anymore. The personal respondent’s actions were getting progressively worse and she lost a lot of respect for him and felt like he was taking advantage of his position over her. He was her boss and one of the partners in the firm and she felt really violated.
33The personal respondent was asked to review the complainant’s human rights complaint and whether he agreed with the statements in the complaint. With the exception of the first paragraph, which refers to the complainant being placed with the respondents as a student, and the second-to-last paragraph, which refers to the complainant speaking to Ms. Daniel on the day she resigned, the personal respondent answered, “Absolutely not”. Aside from those exceptions, he described the statements in the complaint as “inaccurate and totally false.” He was asked about, and specifically denied, the allegations in the complaint that he caressed her lower back, that he made an unwarranted comment on her choice of undergarments, that he told her that he should spank her and proceeded to do so, and that he put his arm around her shoulders and grabbed her breast. When asked if he ever touched the complainant’s breast or bottom, he answered, “Absolutely not; I would never ever do such a thing; I’m a lawyer.”
34The complainant testified that after the last incident, their working relationship became extremely tense, awkward and uncomfortable. The personal respondent started running errands during the day and she thought he was avoiding her. She was thinking at that point that she wanted to look for employment elsewhere.
35When asked if she complained to friends, she testified that she told close friends, her younger brother and her boyfriend what happened. She explained that she called friends right after the “butt slapping” incident. Around the same time, she told her boyfriend at the time and he was extremely upset over it.
Office attendance
36The complainant testified that the personal respondent was always in the office, Ms. Daniel was there “not too often” and the articling student was there sometimes. The complainant explained that Ms. Daniel practiced criminal law and was often in court and if the articling student was not in the office she was in court or filing documents. The complainant testified that quite often it was just the personal respondent and her in the office. The third lawyer was in and out.
37In cross-examination, the complainant testified that the personal respondent was regularly in the office. She explained that there were days when he worked in the office and days that he would be in court and would come in before or after court. She agreed that court would start at 9:00 or 10:00 and sometimes the personal respondent would be in court in Newmarket, Oshawa, or Whitby. She agreed that he was not in the office every single day but testified that he was usually in the office regularly.
38The personal respondent testified that it was a very busy office. On a typical day, he might, on average, have about five clients coming in and he might have a court appearance. If he had court in Brampton, Whitby or Newmarket, he would go directly to court from home in the morning. He testified that Ms. Daniel was there practically every day. Even though she practiced criminal law, there were times when she left court much earlier so, on any given day, she would be in the office. In cross-examination, he testified that Ms. Daniel was around for the most part, except for when in court and acting as duty counsel. He disagreed that she was absent for large chunks of the day but said that she might go out for three or four hours.
39He testified that the articling student worked for him for the most part. As an articling student, she did not have the right of appearance so she did not go to court. She was mostly in the office drafting documents and doing research for him. He testified that she was in the office practically every day, 90% or more of the time. She worked 9:00 to 5:00 but sometimes would leave at 6:00 at the latest. In cross-examination he testified that the articling student worked more often for him but started to work more for Ms. Daniel after she was called to the bar. He maintained that the articling student spent a lot of time in the office. He testified that another student was also there about the same time that the complainant was there.
40The personal respondent testified that he does not recall a time when he was alone with the complainant, although it may have been possible that they were alone. He also testified that it was very important that each office always kept the door open. The only time he kept his office door shut was when he was interviewing clients.
41The personal respondent referred to his day planner to illustrate that on many of the days that the complainant worked he had court appearances, client meetings which typically might last 45 minutes each and other personal matters to take care of. On one of these days the bookkeeper was present and he testified that the bookkeeper may have spent the entire day.
Reduction in hours and resignation
42The complainant testified that in June or July the personal respondent told her that he only needed her two days per week. He also told her in August that he wanted her to come in one day per week. With respect to the reduction from three days to two days, she testified that he told her that the other law clerk was also there for two days so he would call her if busy which he did sometimes. With respect to the reduction from two days to one day, she was not sure what he said to her.
43The complainant testified that she believes it was the second week in August when the personal respondent told her that he wanted her to be on call. She stated that, by that point, she was extremely uncomfortable there so it was actually a relief. She was planning to look for employment elsewhere. When asked if he gave any reason, she testified that she believes he said it was not working out. She took it to mean that she hadn’t responded to his advances so he was penalizing her for that.
44The complainant testified that the personal respondent hadn’t brought any performance issues to her attention, other than errors from time to time that he would correct. She testified that, other than occasional mistakes, there were no new performance issues.
45The complainant believes that she was asked to come in to work the next two days which were a Wednesday (August 17) and a Thursday (August 18). She thinks that she worked on the Wednesday and on the Thursday she went in with her then-boyfriend and they spoke to the personal respondent.
46The personal respondent testified that the last day the complainant worked was August 15, 2005 (Monday). He had a chat with her concerning the work that she was doing. He explained that he had reduced her hours from 24 hours to eight hours and said that she would come in only once a week compared to three days. The other law clerk had graduated from university and needed more hours. She had been offered admission to law school and he believes she called him and asked him for more hours. As he preferred the other clerk as a result of her having worked for him longer and her competence and given all his concerns about the complainant, he decided to reduce the complainant’s hours to eight hours. He testified that the complainant was not completing work on time and he found himself essentially doing a lot of the work that he assigned to her which was affecting his work load. He also stated that she was making a lot of errors. He testified he said to her we are going to reduce to “on call”. He testified that “implicitly it was a way of saying ‘look this work is over.’” The complainant could have come in on the Wednesday, since she was already scheduled, but she did not. She showed up on Friday, August 19, but not to work.
Resignation
47When the complainant was asked why she went to the office with her boyfriend she said because he was furious about what the personal respondent had done and he wanted to confront him about it. She testified that she told him there was no need but he wanted to so he came in. She was planning to resign and gave the personal respondent her resignation letter. The complainant testified that she does not have a copy of the letter and does not remember what she said in the letter but she does not think that she referred to any inappropriate conduct in the letter. In cross-examination, she explained that she moved to Ottawa and bought a new laptop once she got there and that’s the reason she does not have a copy of the letter. She believes she handed the letter to the personal respondent. He was in his office behind his desk and she was sitting in the chair in front of his desk. He wished her well.
48She believes that her boyfriend came in right after she spoke to the personal respondent and that he was sitting in the waiting area when she gave the letter to the personal respondent. She testified that her boyfriend basically asked the personal respondent what was he thinking when he touched her and the personal respondent said that he did not want to speak to him and that he would call security if he did not leave. The personal respondent started to pick up the phone so she asked her boyfriend to please leave.
49The complainant testified that she recorded the conversation on an old cell phone but she does not have the phone as she bought a new cell phone and did not keep the old one. She said that she thought the personal respondent would “own up to what he did but he never did.” She explained that she was planning to go to the police and that was the point of recording the conversation.
50The complainant testified that her boyfriend left and she followed. As she was leaving she saw Ms. Daniel in her office so she spoke to her and told her what happened. She testified that she told Ms. Daniel that the personal respondent had touched her inappropriately and had slapped her bottom and Ms. Daniel said she knew her character, she believed her and she was sorry it happened. The complainant testified that she did not tell Ms. Daniel sooner because she was afraid she would lose her job if she said something. She testified that the door to Ms. Daniel’s office was ajar and the personal respondent knocked on the door and tried to speak to Ms. Daniel but she said “not now” and shut the door. She was not in Ms. Daniel’s office long and after she told her, she left.
51The personal respondent testified that he was in his office on Friday, August 19, 2005, when the complainant walked in about noon. She came in alone and asked to sit down. She was pleasant. She had a letter of resignation but he “thought the work relationship had ended before the letter.” He said, “you’re still young; I’m sure things will work out.” She thanked him and stepped out of the office. She never mentioned any of the allegations. She stood at the door and screamed the name “Omar”. A young man came in very agitated and appeared angry. The personal respondent asked who he was and he started talking to him in a very rude manner. He testified that the young man asked him two key questions: “how old are you?” and “why did you have to touch her?” He was very angry.
52The personal respondent testified that he said, “get out of the office”. He feared for his life, so he stood up and grabbed the phone and yelled, “if you don’t get out of here I’m going to call the police.” He then escorted him out of the office and locked the door behind. He went to speak to Ms. Daniel but noticed her door was shut. He knocked and opened the door at the same time. He noticed the complainant sitting there so he quickly withdrew and went back to his office. After the complainant left, he went back to Ms. Daniel and said, “did you see what nonsense happened?” Ms. Daniel said the complainant had told her he had “touched her butt”. He said “what nonsense” and went back to his office “really boiling”.
53The personal respondent confirmed that he provided a statement to the Commission in response to the complainant’s allegations. Other than one incorrect date at the end, he indicated that it was a true reflection of his recollection at the time.
Events after the complainant’s resignation
54The complainant testified that she complained to the police. Originally she went to 31 Division but she was told it was not in their jurisdiction so she went to a police station on Yonge Street maybe a month or so later. The complainant was shown a copy of an occurrence report that she obtained from the Toronto Police Service. The occurrence report indicates the date she reported was November 29, 2005. When asked why she waited she stated, “just because it was a lot further from where I lived.”
55The complainant was directed to read the information recorded under the headings “HISTORY”, “SYNOPSIS”, and “SUPP”. She agreed that it was a more or less accurate recording of what she told the police.
56In cross-examination, the complainant agreed that she made two statements to the police. The second statement was video recorded. The complainant agreed that the allegations in her human rights complaint pertaining to June and July 2005 were absent from the police occurrence report (however, it appears that counsel was referring to only the June allegations in the complaint as it was acknowledged that the July allegations in the complaint were referred to in the occurrence report, albeit as occurring in August). In any event, it appears that the incident alleged to have occurred in June 2005 is also included in the occurrence report as part of the written account of the complainant’s recorded video statement. Under the heading “SUPP”, it states, in part, “touched her bare back slightly above her buttocks area. This area of skin was exposed because she was bent over and her shirt had pulled up slightly.” This section of the occurrence report also refers to a second incident and states, in part, “arm around her shoulder and attempted to touch the complainant’s breast…”
57Under the heading “SYNOPSIS” in the occurrence report, the last alleged incident is referred to as is the alleged incident of the complainant being slapped on the buttocks. Only these two alleged incidents are referred to in this section of the report. In addition, all three incidents involving touching are recorded in the occurrence report as having occurred in August 2005.
58The complainant was asked in cross-examination about the incidents of the “slap on the buttocks” and the “hand over the shoulder touching the breast” both being recorded in the report as occurring in August 2005. The complainant indicated that this might have been an error and that she might have made an error with the dates.
59In re-examination, the complainant was referred to a portion of the occurrence report, under the heading “SUPP”, wherein it states that the back touching incident occurred in August 2005, “the complainant continued to work for several more weeks without incident” and then states that the attempt to touch the complainant’s breast also occurred in August 2005. The complainant was asked if, as a matter of logic, it was possible to have two instances several weeks apart in August. She testified that she believed the officer made a mistake and agreed that she did not work for several more weeks. She testified that the dates in the report were not accurate and stated that she never signed it.
60The complainant also testified on cross-examination that she didn’t report the alleged incident involving only the comment to the police. She testified that the officer asked her about actual touching.
61The complainant testified that at some point a police officer told her that he thought there wasn’t enough evidence and the personal respondent testified that he was interviewed by the police and subsequently an officer told him that he was closing the case. The complainant testified that she was told by the police officer that she could either file a private complaint with a justice of the peace or she could file a complaint with the Commission. She filed a complaint with the Commission which she drafted.
62The complainant testified that, after she left the respondent law firm, she applied for positions at other firms and sent her résumé out. She remembered one interview. She testified that it did not go well, stating, “because she asked why I didn’t work at the previous law firm and I told her the truth and she looked at me like I did something wrong.” She testified that she checked newspapers and responded to newspaper and internet ads. She was not sure how many firms she sent résumés to. She did not use the letter of reference because the personal respondent’s number was on the letter and it said that a potential employer could call him. Because she tried to lay criminal charges against him, she thought he would not give a glowing recommendation.
63She testified that she had been working at Wal-Mart on the weekends, earning $9 per hour and that she kept that job but went on a leave of absence because she became really depressed. She testified that she went in for approximately a month and a half and her manager approached her and said she should take some time off and “deal with it” and come back when ready. She never went back. On cross-examination, she stated that she was on a leave from September to October and then went back for about a month.
64The complainant testified that she became depressed after the last incident. She went to a walk-in clinic at some point. She told the doctor what happened and that she was feeling depressed and asked if he could prescribe something. She was given pills for anxiety and told it was not full blown depression. She does not recall the name of the prescription.
65The complainant testified that she had no other employment and returned to school at Seneca in January 2007 and at Carlton in September 2007. She testified that she is planning to graduate by December 2009 and attend law school.
ANALYSIS AND DECISION
Assessment of credibility
66This Decision turns largely on my assessment of the credibility of the evidence given by the complainant and the personal respondent. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:
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 carries 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]
67In assessing the evidence, in addition to the oral evidence of the parties, I have considered the documentary evidence submitted at the hearing.
Findings of fact
68For the reasons that follow, I find the complainant’s account of what transpired while she was employed by the respondents to be more credible than the account provided by the personal respondent. The complainant was very forthcoming in giving her evidence. Her evidence was consistent and, for the most part, corresponded with the documentary evidence. She was also forthright on cross-examination.
69With respect to the allegations of inappropriate comments and touching, the complainant’s evidence was fairly detailed and descriptive in terms of what happened and what was said. She clearly recalled where the incidents took place; however, with the exception of the last incident which she testified she believed happened the first week of August, her evidence as to the timing of events was somewhat lacking in particularity and there are some minor discrepancies with the documentary evidence.
70The complainant’s evidence was consistent with the allegations set out in her self-drafted complaint. Her evidence was also consistent with the information recorded in the police occurrence report, with the exception that all three alleged incidents of inappropriate touching are recorded as occurring in August 2005.
71In re-examination, the complainant was referred to the occurrence report wherein it states that the back touching incident occurred in August 2005, “the complainant continued to work for several more weeks without incident” and that the last alleged incident also occurred in August 2005. She testified that she believed the officer made a mistake and the dates in the report were not accurate. She also did not work for several more weeks in August. I find that the recording of the timing of the two events in the occurrence report under the heading “SUPP” is an error that does not affect the credibility of the complainant.
72With respect to the alleged incidents of the “slap on the buttocks” and the attempt to grab her breast both being recorded in the occurrence report under the heading “SYNOPSIS” as occurring in August 2005, the complainant indicated that she might have made an error with the dates. The report refers to the former incident occurring “In August 2005 on an unknown date” and the latter incident occurring “a couple of days later”. It also states that “she continued to work their [sic] a week or two after the second incident”. The complaint refers to the former incident occurring “In the end of July 2005” and the latter incident occurring “In the beginning of August 2005”. In her evidence, the complainant testified that the former incident occurred “in July” and she testified that she believes the latter incident occurred “the first week of August.” I do not find these slight discrepancies in the evidence with respect to the timing of these two alleged incidents to be of sufficient significance to affect the complainant’s credibility.
73The complainant testified that she did not complain to Ms. Daniel because she was married to the personal respondent and she felt that she could not go to her. She testified, however, that on the day she resigned she did speak to Ms. Daniel and told her what happened. She told Ms. Daniel that the personal respondent touched her inappropriately and slapped her bottom. She testified that she did not tell her sooner because she was afraid she would lose her job. Ms. Daniel did not testify, and I give no weight the complainant’s hearsay evidence concerning what Ms. Daniel said to her when she told her that the personal respondent touched her inappropriately. However, the personal respondent confirmed that, on the day the complainant resigned, Ms. Daniel told him that the complainant said that he touched her butt. I find that, given the relationship between the personal respondent and Ms. Daniel, it is reasonable that the complainant would not have told Ms. Daniel sooner than she did. I also find that it is unlikely that the complainant would have told Ms. Daniel on the very day of her resignation that the personal respondent touched her inappropriately if it did not occur.
74The complainant testified that she told close friends, her younger brother and her then-boyfriend what happened. She testified that she called friends right after the “butt slapping” incident and, around the same time, she told her boyfriend. Although none of these individuals testified, the complainant and the personal respondent both testified that the complainant’s boyfriend attended the respondents’ offices with the complainant the day she resigned and he confronted the personal respondent, asking him about touching the complainant. Again, I find that is unlikely that the complainant would have told her boyfriend that the personal respondent touched her and that she would have then gone to the respondents’ offices with him if it did not occur. I also find that it is unlikely that the complainant would have reported the alleged incidents to the police if the incidents did not occur.
75With respect to the evidence of the personal respondent, I find that his evidence was inconsistent with the overall evidence on a number of points and that this affects his credibility. In particular, I find that the personal respondent’s evidence concerning the complainant’s performance is largely inconsistent with the documentary evidence.
76In his written statement to the Commission, the personal respondent alleges that he began to lose his patience with the complainant regarding the quality of her work and, sometimes when the assigned work was not completed within stipulated deadlines, he spoke harshly to her about his expectations. He alleges that he often voiced his dissatisfaction with her performance and, by the first week of August 2005, he informed her that he was not pleased with the quality of her work and reduced her hours. Her performance continued to decline and he made up his mind to place her on call.
77In his evidence, the personal respondent testified that he had concerns about the complainant, that she was not completing work on time and he found himself essentially doing a lot of the work that he assigned to her. He also stated that she was making a lot of errors. With respect to supervision, he testified that typically he would go to her desk and speak to her; occasionally he would call her into the office and have a chat with her and say “I don’t like this” or “this needs to be done.” He did not testify that he sometimes spoke harshly to her about his expectations or that he often voiced his dissatisfaction with her performance as alleged in his statement to the Commission. The complainant, on the other hand, testified that the personal respondent was never critical of her work. If she made an error, he would correct it. She testified that “it was always constructive criticism, never harsh or demeaning, always positive.”
78I also find the personal respondent’s evidence concerning the complainant’s performance is inconsistent with the field placement evaluations and letter of reference. The March 16, 2005 evaluation does state, “There’s more room for improvement with regards to her ability to complete work on time and ability to take initiative”; however, both evaluations are rated as “Outstanding” in terms of “Overall Final Evaluation”.
79With respect to the March 16, 2005 evaluation, the personal respondent testified that he first checked off “Satisfactory” and then it dawned on him that people usually leave, so he crossed out “Satisfactory” and checked “Outstanding”. I do not find the personal respondent’s evidence to be credible on this point. On the 15 different areas that he evaluated the complainant on, five are rated as “Excellent”, nine as “Very Good” and one as “Good”, which correspond to scores of “5”, “4”, and “3”, respectively. “Satisfactory” corresponds to a score of “2” on the form. It would have simply been inconsistent to characterize the “Overall Final Evaluation” as “Satisfactory”. In addition, the personal respondent wrote, “Overall Teri’s performance thus far is outstanding and we have decided to offer her full time employment.”
80The personal respondent testified that he generally completes evaluations in such a way, regardless of what a student does, to let them do whatever they want to do and that the idea is to encourage students to move on with their careers. When asked about rating the complainant “Very Good” on the evaluation form with respect to “Knowledge of Legal Procedures” and “Knowledge of Legal Documentation”, as well as his written statement that the complainant has a good grasp of legal procedures, he testified that he would not have assigned things such as drafting legal documents and “it’s totally exaggerated.” While I accept that he may have been generous in completing student evaluations, I do not believe that he would have grossly misrepresented their performance to their schools from which he received student placements.
81The personal respondent also testified that he does not write negative reference letters, that the complainant wrote her own reference letter based on a template and that he would have signed the letter even if he did not agree with it or it was inaccurate because his goal was to allow the complainant to move on with her life and career. Again, I do not believe that the personal respondent would have signed the complainant’s letter of reference if it grossly misrepresented her performance to prospective employers, particularly as the letter provided his telephone number and indicated that he could be contacted if there were any further questions regarding her background or qualifications.
82The complainant confirmed that the evaluations matched her understanding of how the personal respondent felt about her work and the feedback that she received from him. She testified that some days she couldn’t finish work so it was left for the next day. He discussed it with her and she took it as constructive feedback and something to improve upon. While I accept that there may have been an issue with respect to the complainant’s ability to complete work on time, I find the personal respondent’s evidence of dissatisfaction with her performance to be exaggerated. In particular, his evidence of dissatisfaction with her performance appears inconsistent with both the documentary evidence and the evidence of the complainant. The personal respondent alleges that her performance declined during her employment; however, I find that his attempts in his testimony to essentially characterize the earlier evaluations and letter of reference as exaggerated, or not accurately reflecting the complainant’s performance, lack credibility. In addition, there was no other documentary evidence relating to performance issues with the complainant entered at the hearing, nor was there any documentary evidence relating to a decline in her performance. Thus, I prefer the complainant’s evidence that the personal respondent had not brought any performance issues to her attention, other than errors from time to time that he would correct and that, other than occasional mistakes, there were no new performance issues.
83I also do not believe that the personal respondent would have offered the complainant employment as a law clerk if he had any significant concerns with her performance. He testified that he discovered that most of the applicants for the position did not have the skills in software that were set out in their résumés and that, at the prodding of his articling student, he hired the complainant. He testified that he finally caved in and said “fine”; however, in his statement to the Commission, he indicates that the salary expectations of the applicants exceeded the amount that he had budgeted for the position. He decided to invest in a new graduate and train the complainant.
84The personal respondent testified that it may have been possible that they were alone, but he does not recall being alone in the office with the complainant. He stated that he was either out of the office, meeting clients, or somebody was always present, such as Ms. Daniel, the articling student or the third lawyer and another student was also there about the same time as the complainant.
85A significant portion of the personal respondent’s evidence concerned his whereabouts, in reference to his day planner, on the days in June, July and August 2005 that the complainant normally worked. I did not find this evidence to be helpful to the personal respondent as it appears from this evidence that he was regularly in the office. While he had court appearances on 14 of the 33 days the complainant normally worked between June 1 and August 12, 2005, he also had client meetings in the afternoons on 10 of those 14 days. On 13 of the 33 days, he did not attend court and had client meetings. He testified that, on a typical day, he might have on average about five clients coming in and he might have a court appearance; however, it appears that there was only one day between June 1 and August 12, 2005, that he had as many as five client meetings and it does not appear that he had a court appearance on that day. He testified that if he had nothing scheduled, he would normally catch up on his drafting work. In cross-examination, he explained that when he did not have appointments it was possible that he was doing other things in the office and he would be having interactions with the complainant and others in the office.
86I also note that the personal respondent testified that, for the most part, the complainant’s work days remained the same but sometimes the other clerk was not able to come in and he would need help so he may have called the complainant in twice during that period. The complainant testified that in June or July the personal respondent told her that he only needed her two days per week but he would call her if busy which he did sometimes or a few times. She testified that he also told her in August that he wanted her to come in one day per week. The personal respondent did not mention reducing the complainant’s hours to two days per week but alleges that, by the first week of August, he reduced her hours to eight hours per week. It appears, therefore, that the complainant may not have worked every Monday, Wednesday and Friday, and that she may not have worked only on those days of the week.
87The complainant testified that quite often it was just the personal respondent and her in the office as Ms. Daniel was in court and the articling student was in court or working on something out of the office. The third lawyer was in and out. In cross-examination, the personal respondent disagreed that Ms. Daniel was absent for large chunks of the day but said that she might go out for three or four hours. Contrary to the complainant, he testified that the articling student was in the office practically every day, 90% or more of the time.
88The complainant testified that the first alleged incident, when the personal respondent touched her back, occurred when she was in the cubicle in his office retrieving files. She testified that the second, third and fourth alleged incidents, when he asked her if she wore thongs, when he spanked her, and when he tried to grab her breast, occurred near her desk when no one else was around and she believed it was just the two of them in the office.
89I have found that the personal respondent was regularly in the office. It also appears from the evidence that Ms. Daniel was often in court. The parties disagreed on how often the articling student was in the office. The complainant testified that the third lawyer was in and out. In the circumstances, I find that it is quite likely that there were times that the complainant and the personal respondent were alone in the office. In any event, I also agree with the submissions of Commission counsel that none of the alleged incidents of inappropriate touching and comments would have taken more than a minute to occur and could have happened when others were busy in their offices and the complainant and the personal respondent were out of sight or earshot.
90In all the circumstances, I find that the following incidents of inappropriate comments and touching occurred:
When the complainant bent down to retrieve some files from a filing cabinet, the personal respondent caressed her lower back and made a comment that the complainant was “hairy”.
The personal respondent asked the complainant if thongs were comfortable and said they look good on her.
The personal respondent commented that he should spank the complainant and he spanked her buttocks.
The personal respondent put his arm around the complainant’s shoulder and tried to grab her breast and she immediately pushed him away.
Relevant Code provisions
91The relevant provisions of the Code provide as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex ….
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant, or deny a benefit or advancement to the person.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) In Part I and in this Part,
“harassment” means engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.
92I find that the incidents of inappropriate comments and touching set out above, that I have found occurred, constitute a course of vexatious conduct or comment, contrary to sections 5(1), 7(2) and 9 of the Code. I find that the personal respondent knew or ought reasonably to have known that such comments and conduct were unwelcome.
93I also find that the personal respondent’s inappropriate touching of the complainant on the three occasions constitutes a sexual solicitation or advance. The personal respondent, as a lawyer who hired the complainant to work for him as a law clerk upon completion of her student field placement, was clearly in a position to confer, grant or deny a benefit or advancement to the complainant. Accordingly, I find that the personal respondent also violated sections 7(3)(a) and 9 of the Code.
Section 7(3)(b) of the Code
94I also find that the complainant was subjected to a reprisal for the rejection of a sexual solicitation or advance by the personal respondent when the complainant’s hours were reduced from one day per week and she was placed “on call”. Counsel for the Commission submitted that the complainant was also subjected to a reprisal, contrary to section 7(3)(b), when her hours were reduced from three days to two days per week and from two days to one day per week. In my view, there is insufficient evidence to establish that the reduction in the complainant’s hours down to one day per week was related to the rejection of a sexual solicitation or advance.
95The complainant testified that, in June or July, the personal respondent told her that he only needed her two days per week and, in August, he told her that he wanted her to come in one day per week. The personal respondent, on the other hand, testified that he had reduced her hours from three days to one day per week. He did not mention the complainant working two days per week. When asked how she felt about the reduction, the complainant testified that she was fine with it as he said he would call her in if busy and he did a few times. However, she also testified that she believed he reduced her hours because she wasn’t responding to his advances.
96The personal respondent testified that he reduced the complainant’s hours to one day per week because the other law clerk asked him for more hours and because of the complainant’s performance. While I have already found that his evidence with respect to the complainant’s performance was inconsistent with the documentary evidence, and I prefer the documentary evidence and the evidence of the complainant concerning her performance, it is possible that he reduced her hours to one day per week in order to provide more hours to the other law clerk.
97I also find that, in particular, there is insufficient evidence concerning the timing of the reduction in the complainant’s hours down to one day per week to establish a nexus to a rejection of a sexual solicitation or advance. The complainant testified that the reduction to two days occurred in June or July and the reduction to one day occurred “in August”. In his statement to the Commission, the personal respondent indicated that he reduced her hours to one day per week “[b]y the first week of August, 2005”. Given that the complainant’s evidence as to the timing of events was somewhat lacking in particularity and that there were some minor discrepancies with the documentary evidence, it is not clear from the evidence when the reduction in hours occurred, relative to the incidents of inappropriate conduct. If there was a reduction to two days per week, as the complainant testified, this may have occurred prior to any of the incidents of inappropriate comments and touching. It appears that the reduction to one day per week might have occurred after the spanking incident and before the last incident, however, it is not clear from the evidence. Moreover, even if the reduction to one day per week occurred after the spanking incident, there was no evidence that there was any change in their working relationship until after the last incident.
98The complainant testified that it was after the last incident, when she pushed him away, told him that she didn’t want him touching her, and that she was offended, that her working relationship with the personal respondent became extremely tense and awkward and she thought he was avoiding her. She testified that he apologized and, the next day, he said she was looking at him differently and he apologized again. She testified that the last incident happened the first week of August. It is also clear from the evidence that the reduction from one day per week to “on call” occurred after the last incident. The personal respondent testified that, “implicitly it was a way of saying ‘look this work is over.’” He also testified that when the complainant came in with a letter of resignation on August 19, 2005, he “thought the work relationship had ended before the letter.” I do not find the personal respondent’s evidence that he placed the complainant “on call” because of performance issues to be credible.
99In the circumstances, I find that the personal respondent subjected the complainant to a reprisal, contrary to sections 7(3)(b) and 9 of the Code, when he reduced her hours from one day per week to “on call”, thereby effectively terminating her employment, as a result of her rejection of a sexual solicitation or advance. However, I do not find that any earlier reductions in her hours constituted a reprisal within the meaning of section 7(3)(b).
100I also find that the respondents are jointly and severally liable for the above violations of the Code, considering that the personal respondent, Mr. Paul Krumeh, was clearly a “directing mind” of Daniel & Krumeh.
REMEDY
101The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides, inter alia, the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything to promote compliance with the Code.
Monetary Compensation for Injury to Dignity, Feelings and Self-Respect
102The complainant and the Commission seek $30,000.00 in compensation for loss arising out of the infringement of her rights, including injury to dignity, feelings and self-respect.
103Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified relevant criteria to be used in assessing the appropriate quantum of damages to compensate for the infringement of rights enumerated in the Code, which have an intrinsic value, and for mental anguish (see Sanford v. Koop, 2005 HRTO 53). Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect (see Hope v. Maplewood Painting, 2009 HRTO 595 and Hughes v. 1308581 Ontario, 2009 HRTO 341). The Ontario Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
104The complainant testified that after the incidents of inappropriate touching she felt extremely uncomfortable, violated and offended. She did not tell anyone in the office about the incidents at the time because she was afraid of losing her job if she did. She felt taken advantage of. After the last incident, her working relationship with the personal respondent became extremely tense and awkward and when he told her that he wanted her to be “on call” it was actually a relief as she was planning to look for employment elsewhere.
105The complainant also testified that she became depressed after the last incident. She went to a walk-in clinic at some point and told a doctor what happened, that she was feeling depressed and asked if he could prescribe something. She was prescribed medication for anxiety.
106I have found that the complainant was subjected to inappropriate comments and conduct, including sexual solicitations or advances involving the spanking of her buttocks and an attempt to grab her breast, contrary to sections 5(1) 7(2), 7(3)(a) and 9 of the Code. I have also found that the complainant was subjected to a reprisal for the rejection of a sexual solicitation or advance when she was placed “on call” and her employment was effectively terminated, contrary to sections 7(3)(b) and 9 of the Code. At the time of these incidents, the complainant was particularly vulnerable as she was 22 years old, had recently graduated and was in her first career-oriented job. She was also afraid that she would lose her job if she told anyone in the office about the incidents. She sought treatment from a doctor as a result of her experiences at the firm. In all of the circumstances, I find that an award of $25,000.00 is appropriate as compensation for the impact of the discrimination, harassment, sexual solicitations or advances, and reprisal, on the complainant’s dignity, feelings and self-respect.
Lost Wages
107The complainant requests $27,360.00 in damages for lost wages. This amount is calculated based on the complainant earning $12 per hour, three days per week from August 2005 to January 2007 when the complainant commenced full time studies. It also includes lost earnings from Wal-Mart for 14.5 months.
108I have found that the personal respondent violated the Code when he reduced her hours from one day per week to “on call”. In the circumstances, I find that the complainant is entitled to an award for lost wages arising out of this infringement.
109Although the complainant’s evidence concerning her job search following her employment with the respondents is somewhat lacking in detail, I am satisfied that she made reasonable efforts to mitigate her losses for a period of time; however, the complainant gave no evidence as to the timing of her job search efforts, despite claiming damages for lost wages over a 16.5 month period. I have also considered the personal respondent’s evidence that he left for Nigeria the first week of December 2005, returned at the end of January 2006 and was sick for the most part in 2006 due to a stroke. It also appears that he ceased practicing in association with Ms. Daniel at least by the time he returned from Nigeria. It appears from the evidence, therefore, that it is likely that there would not have been work for the complainant after the first week of December 2005 when the personal respondent left for Nigeria. In the circumstances, I find that an award of lost wages, in respect of earnings from the respondents, for a period of 16 weeks is appropriate.
110With respect to the claim of lost earnings from Wal-Mart, the complainant testified that she continued to work at Wal-Mart for maybe a month and a half but went on a leave of absence because she became really depressed and that she never went back. On cross-examination, however, she stated that she was on a leave from September to October and then went back for about a month. In light of the apparent contradiction in her testimony, and the absence of any other evidence relating to her leave of absence and/or departure from Wal-Mart, I find that the evidence does not support an award of lost wages in respect of lost earnings from Wal-Mart.
111In his statement to the Commission, the personal respondent indicated that the complainant worked eight hours per week. She earned $12 per hour. Accordingly, she is entitled to an award of for lost wages in the amount of $1,536.00.
Interest
112The Commission requests, and I agree, that pre-judgment and post-judgment interest be ordered on the awards of damages above. In the case of the $25,000.00 for injury to dignity, feelings and self-respect, pre-judgment interest should run from the date the complainant’s employment with the respondents ended, August 19, 2005. For lost wages, I find that interest should run from October 14, 2005. Post-judgment interest is payable in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43, and should run from 30 days from the date of this Decision.
Remedies to Ensure Future Compliance
113At the hearing, the Commission asked that the following remedies to ensure future compliance with the Code be ordered by the Tribunal:
a. That the personal respondent: (i) within three months of the date of this Decision, draft an anti-discrimination and anti-harassment policy (the “Policy”); (ii) provide the draft Policy to the Commission for review and comments; (iii) provide a copy of the Policy to all employees, including those working part time, on contract and including students and others sharing office space;
b. That the personal respondent read Rule 5 of the Law Society of Upper Canada’s Rules of Professional Responsibility and confirm, in writing to the Commission, that he has done so;
c. That if the personal respondent is contacted by a prospective employer of the complainant, he will not provide information different from that contained in the reference letter, and that he will not disparage her; and
d. That the Tribunal remained seized of this matter in the event any dispute arises out of any order the Tribunal may make.
114In light of my findings in this case, I find that the Commission’s request that the personal respondent develop an anti-discrimination and anti-harassment policy is appropriate; however, in ordering that he develop such as policy, I do not think it is necessary that I require that he also read Rule 5 of the Law Society of Upper Canada’s Rules. In the circumstances, I also decline to order what the personal respondent may say if contacted by a prospective employer of the complainant. Having regard to the remedial provisions of the Code, it is not clear to me that such an order flows from my findings in this case, and I also did not receive submissions on my ability to make such an order. In my view, it is unnecessary that this Tribunal remain seized having regard to the Order below which should provide sufficient guidance to the parties in this matter.
ORDER
115Accordingly, the Tribunal orders as follows:
- Within 30 days of the date of this Order, the respondents are jointly and severally liable to pay the complainant the following amounts:
a. $25,000.00 in respect of compensation for loss arising out of the infringement of her rights, including injury to dignity, feelings and self-respect;
b. $1,536.00 in respect of lost wages;
c. Pre-judgment interest on the award of $25,000.00 from August 19, 2005, to the date of this Decision, and on the award of $1,536.00 from October 14, 2005, to the date of this Decision, in accordance with the Courts of Justice Act.
Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.
Within 90 days of the date of this Order, the personal respondent shall:
a. draft an anti-discrimination and anti-harassment policy (the “Policy”);
b. provide the draft Policy to the Commission for comments and approval;
c. provide a copy of the approved Policy to all current and future employees, including those working part time and on contract, and current and future students that are placed with the personal respondent; and
d. provide written confirmation to the Commission that the Policy has been distributed to all current employees and students.
Dated at Toronto, this 29th day of October, 2009.
“Signed by”
Brian Eyolfson
Vice-chair