Smith v. Menzies Chrysler Inc. (No. 2)

HR-1368-07

2009-11-13

2009 HRTO 1936

Ontario Human Rights Tribunal

CHRR Doc. 09-2527

William David Smith Complainant

and

Ontario Human Rights Commission Commission

v.

Menzies Chrysler Incorporated, Tom Graham, Clark Menzies and Mark Lyons Respondents

Date of Decision: November 13, 2009

Before: Human Rights Tribunal of Ontario, Ena Chadha

File No.: HR-1368-07

Appearances by:

Paul McKeever, Counsel for the Complainant

Richard J. Mazar, Counsel for Menzies Chrysler Inc., Clark Menzies and Mark Lyons

Paul D. Mack, Counsel for Tom Graham

Kikee Malik, Counsel for the Commission

SEXUAL HARASSMENT — poisoned work environment — joking by co-worker — definition of sexual harassment — SEXUAL ORIENTATION — sexualized environment — RETALIATION — definition of reprisal — harassment and employment terminated after filing human rights complaint

EMPLOYMENT — obligation to provide discrimination-free workplace — LIABILITY — employer liability for employee — joint liability — personal liability — DAMAGES — damages assessed for harassment, reprisal and sexual harassment — compensation for injury to dignity and self-respect — REMEDIES — harassment and sensitivity training — human rights complaints procedure and training — workplace discrimination policy — display rules concerning human rights

Summary: The Human Rights Tribunal of Ontario ruled that William David Smith was sexually harassed by Tom Graham while he was employed by Menzies Chrysler Inc. in Whitby, Ontario.

Menzies Chrysler is a large, family-operated car dealership with about 50 employees. David Smith worked as a used car salesman during three different periods between 2003 and 2006. In 2006, David Smith, Tom Graham and Mark Lyons worked from a trailer located on the grounds of the dealership, but separate from the main car show room. Smith and Graham were co-workers; Mark Lyons was their supervisor. In the trailer there were offices at either end, occupied by Graham and Lyons. David Smith worked in an open area in the middle of the trailer.

Because the trailer was the workplace of the sales crew who sold used cars, and they were all men, it was said to have a "locker room" atmosphere, which included the regular use of profanity and viewing of pornography on the computers in the trailer. The owners of Menzies Chrysler accepted this as normal, and sometimes participated in the locker room antics themselves.

Graham regularly removed his pants in the complainant's presence and proceeded, naked from the waist down, to dry and groom his hair in the trailer's hallway. During this regular dressing regime, Graham taunted the complainant by thrusting and gyrating his hips, and swinging his penis around, and telling the complainant to "suck my cock". Graham exposed his penis and invited Smith to "fluff it up" in front of Lyons and Clark Menzies. When Smith objected, Menzies, one of the owners told him it was "just fun" and "horseplay".

Graham regularly watched pornography on his computer in the trailer, and liked to have the sound at a high level so that sexual grunts and groans could be heard by everyone. Graham played a video for co-workers that was on his cell phone. The video was of a woman performing fellatio on him. Smith refused to watch.

David Smith, on a number of occasions, told Lyons and Clark Menzies that he objected to Graham's behaviour but they did nothing about it, and protected Graham because of his record as the best salesman.

The Tribunal found that David Smith was sexually harassed by Tom Graham. The key indicia of sexual harassment, the Tribunal said, is "the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim". In this case, Graham relied on sexual comments, gestures and actions to ridicule and disparage the complainant. Graham's conduct was a combination of sexual harassment and workplace bullying.

Although cases of sexual harassment are most often made by women against men, protection from sexual harassment includes protection from inappropriate sexualization of the workplace. The Tribunal rejected the respondent's argument that because of the same-sex composition of the sales force, the behaviour should be accepted as simply good-natured fun among "the boys". There is no basis in the law for excluding sexually vexatious behaviour from Code protection simply because it occurs in a same-sex work setting or because some of the participants appear to enjoy it.

Management at Menzies Chrysler condoned the sexualized work environment and failed to take the complainant's concerns seriously or to investigate them properly.

In addition, the Tribunal found that David Smith's right to be free from reprisal for claiming his rights was violated. His employment was terminated because he objected to the poisoned work environment and expressed an intent to file a human rights complaint. Menzies Chrysler also made a complaint to the police about him alleging theft, because payments for a car he had purchased from the dealership were not fully paid. The complaint to the police was made even though Menzies Chrysler knew about the car purchase and its terms.

The Tribunal ordered all the personal respondents and Menzies Chrysler to pay David Smith $25,000 for the injury to dignity caused by the sexual harassment. It also ordered Tom Graham personally to pay $8,000 and Mark Lyons personally to pay $2,000 for the sexual harassment. In addition, it ordered Menzies Chrysler to pay $15,000 as compensation for the violation of his right to be free from reprisal.

CASES CITED

ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, 64 C.H.R.R. D/132, 2008 CanLII 39605 (Div.Ct.): 172

Baylis-Flannery v. DeWilde (No. 2) (2003), 48 C.H.R.R. D/197, 2003 HRTO 28: 172

Canada (Human Rights Comm.) v. Canada (Armed Forces) and Franke, 1999 CanLII 7907 (FC), [1999] 3 F.C. 653, 1999 CanLII 18902 (FC), 34 C.H.R.R. D/140 (T.D.): 154

Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 179

Cugliari v. Telefficiency Corp. (No. 2) (2006), 56 C.H.R.R. D/27, 2006 HRTO 7: 151

Curling v. Torimiro (No. 4) (2000), 38 C.H.R.R. D/216, 2000 CanLII 20870 (Ont. Bd.Inq.): 162

Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.): 151

Drummond v. Tempo Paint & Varnish Co. (No. 4) (1998), 1998 CanLII 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd.Inq.): 178

Farias v. Chuang (No. 2) (2005), CHRR Doc. 05-366, 2005 HRTO 22: 165

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 14

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230, [1996] O.H.R.B.I.D. No. 23 (QL): 159

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 2) (1999), 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39, 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405 (Div.Ct.): 159

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465, 41 C.H.R.R. D/349 (Ont. C.A.): 159

Giguere v. Popeye Restaurant (No. 4) (2008), 62 C.H.R.R. D/147, 2008 HRTO 2: 184

Hughes v. Dollar Snack Bar (1981), 1981 CanLII 4304 (ON HRT), 3 C.H.R.R. D/1014 (Ont. Bd.Inq.): 156

Imperial Oil Ltd. v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 162

Imperial Oil Ltd. v. Entrop (2000), 37 C.H.R.R. D/481, 2000 CanLII 16800 (Ont. C.A.): 162

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205, 1989 CanLII 97: 147, 156

Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 (Ont. Bd.Inq.): 161

Ketola v. Value Propane Inc. (No. 1) (2002), 44 C.H.R.R. D/20, 2002 CanLII 46510 (Ont. Bd.Inq.): 162, 172

Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 151, 179

North Vancouver School Dist. No. 44 v. Jubran (2005), 52 C.H.R.R. D/1, 2005 BCCA 201: 152

Selinger v. McFarland (2005), CHRR Doc. 08-480, 2008 HRTO 49: 152

Smith v. Mardana (No. 1) (2005), 52 C.H.R.R. D/89, 2005 CanLII 2811 (Ont. Div.Ct.): 159

Smith v. Menzies Chrysler Inc. (No. 1) (2008), CHRR Doc. 08-367, 2008 HRTO 37: 2

Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.): 161, 179

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43

s. 128: 186

s. 129: 186

Human Rights Code, R.S.O. 1990, c. H.19

s. 5(1): 1, 150, 169, 181, 187

s. 5(2): 1

s. 7(2): 1, 150, 169, 181, 187

s. 7(3): 1

s. 8: 3, 162, 169, 181, 187

s. 9 : 1

s. 45.2(1): 169

s. 46.3(1): 180

INTRODUCTION

1On December 14, 2006, William David Smith (the "complainant") filed a human rights complaint against Menzies Chrysler Incorporated ("Menzies Chrysler"), Clark Menzies, Mark Lyons and Tom Graham alleging that they subjected him to discrimination, harassment and reprisal in employment on the basis of sex and sexual orientation, contrary to ss. 5(1), 5(2), 7(2), 7(3) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code").

PROCEDURAL HISTORY

2Pursuant to the predecessor legislative scheme, the human rights complaint was referred by the Ontario Human Rights Commission ("Commission") to this Tribunal on October 15, 2007. In a previous interim decision, 2008 HRTO 37 [CHRR Doc. 08-367], the Tribunal denied the respondents' abuse of process and bias motions.

3The Commission's pleadings notified the parties and the Tribunal that it was no longer alleging a contravention of ss. 5(2) and 7(3) of the Code and instead was relying on s. 8 of the Code in alleging reprisal. In their pleadings, the respondents expressly denied any discrimination, harassment or reprisal.

4The hearing into the merits of the complaint took place over 13 days from February to June 2009. At the outset of the hearing, the Commission made a request to withdraw from active carriage of the complaint and this request was granted upon confirmation from the parties that there were no transitional issues.

5This decision begins with a summary of the allegations and background facts. Then, because of the multitude of allegations and volume of oral evidence, the decision addresses, in some detail, the evidence of the witnesses, their credibility and the conclusions with respect to the contested facts at the heart of the complaint. Next, the decision considers whether the facts and law establish a finding of discrimination, harassment, and/or reprisal. Finally, to the extent the complaint is justified, the decision analyzes what remedies are appropriate in the circumstances. Although the hearing was awash with testimony of a prurient nature, references of those details have been limited to what is necessary for the purposes of making findings of fact and law.

SUMMARY OF THE ALLEGATIONS

6The complainant alleges that, in 2006, while employed by Menzies Chrysler as a used car salesperson, his co-worker Tom Graham ("Graham") engaged in a course of sexually vexatious comments and conduct which poisoned the work environment. The complainant alleges his supervisor, Mark Lyons ("Lyons"), was complicit in this harassment and that Clark Menzies ("Menzies"), dealership owner and manager of the used car sales department, knew of the discrimination and harassment. The complainant alleges that he complained about the harassment to no avail and, ultimately, he was dismissed because of his complaints. The complainant also alleges that he was subjected to further reprisals after he filed his human rights complaint.

7The respondents deny the allegations of discrimination and harassment and submit that the complainant participated in fostering a "locker room" atmosphere in the workplace. The respondents allege the complainant was dismissed because of performance concerns and insubordination. The respondents deny any reprisal and further allege that, following the complainant's dismissal, the respondents discovered that during his employment the complainant had perpetrated theft and fraud against the corporate respondent. The respondents argued that the human rights complaint was filed out of revenge, envy and for financial gain.

BACKGROUND

8Menzies Chrysler is a large family-operated car dealership located in Whitby, Ontario. It employs approximately 50 employees and has both new and used car sales operations. Three Menzies brothers, Todd, Brad and Clark, are the shareholders of the company and all serve as dealership managers. The complainant worked at Menzies Chrysler for three separate periods: March 2003—August 2003, June 2004—August 2005 and March 2006—September 2006.

9The complainant was the top seller of used cars for his first two periods of employment with Menzies Chrysler. The complainant quit his first period of employment to return to his original employer, Davey Auto Sales. He was dismissed from his second period of employment with Menzies Chrysler. The human rights complaint pertains only to the complainant's third and final period of employment in 2006; however, evidence regarding the termination of his second period of employment was led by the respondents to provide a backdrop to the complaint and their defence.

10The used car sales team, which included the complainant and the three personal respondents, worked in a trailer (60 feet long à— 12 feet deep) located on the dealership lot about 50 yards away from the main showroom building. The alleged events at the heart of the complaint occurred in this trailer. The trailer consisted of a hallway that ran the full length of the trailer and had two private offices at each end. There was no washroom in the trailer. The center of the trailer was an open area housing two desks. Adjacent to the private offices (and on either side of the central area) were two partitioned walled, cubicle offices. When seated at the central desks, the car sales lot was visible through two windows located on either side of the front door of the trailer. Hanging in one window facing out to the car lot was an electrical "OPEN" sign which had a reflective back and beneath the window was an electrical outlet. The complainant occupied a desk in the central area of the trailer for his first and second periods of employment.

11During the events in dispute, Lyons and Clark Menzies each occupied a private office at either end of the trailer and Graham occupied a desk in the central area. All desks were equipped with computers. When the complainant commenced his third period of employment, he occupied a desk in the central area, opposite and facing Graham's desk. Some time shortly after the commencement of his third period of employment, the complainant moved out of his central area desk into the cubicle office adjacent to Clark Menzies' office. The doors to the private offices were generally left open and Menzies' office door was directly next to the complainant's doorway.

12The complainant and Graham worked opposite shifts rotating day and evening from Monday to Wednesday. They worked together on Saturdays. Clark Menzies worked full days Monday to Friday, and Lyons worked various shifts throughout the week. During the complainant's third period of employment, Graham was the top-selling used car salesperson.

CREDIBILITY CONSIDERATIONS

13There were significant conflicting, and often salacious, allegations and evidence regarding the events in dispute. There was little in the way of documentary evidence regarding the key events and, while each party adduced some direct eyewitness testimony, both sides attempted to vigorously impugn and discredit such evidence. Consequently, this case largely turns on the issue of credibility of the various parties and witnesses.

14In assessing credibility, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which provides that a witness's demeanour, power of observation, opportunity for knowledge, judgment and memory, and ability to describe clearly what was seen and heard are all elements of the concept of credibility. Ultimately, as stated in Faryna, supra, at 357:

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.]

SUMMARY OF THE EVIDENCE

15In addition to testifying himself, the complainant called three witnesses: Jeff Davey, Antonio Crimi, and Denis Brideau. Along with the personal respondents, the respondents called seven witnesses: Shawn Kunkel, Ajeet Ahuja, Andrew Mitchell, Mark Jeffery, Oreste Dileva, Rick Barnes, and Todd Menzies. All but one of these ten witnesses were former or current employees of the corporate respondent.

16I have carefully considered all of the evidence and the submissions of the parties. Given the numerous allegations, divergent perspectives, and the volume of testimony, set out below is an overview of the main testimony with respect to the events in dispute that is noteworthy for the purposes of arriving at my decision. I have not summarized the evidence of Mark Jeffery because his testimony was consistent with the evidence of the other respondent witnesses.

William David Smith

17In 2002, the complainant was trained and began working in used car sales at Davey Auto Sales. Previously, he had his own business and prior to that worked as a government employee. In 2006, except for a couple of months at Cliff Mills Motors, the complainant's used car sales experience was exclusively with Davey Auto Sales and Menzies Chrysler. At the time of the events, the complainant resided with his wife and children.

18The complainant's human rights complaint alleges that, among other things, Graham made numerous verbal and non-verbal sexual suggestions, including exposing and extending his penis towards the complainant and frequently watching loud pornography. The complainant alleges that he was summarily dismissed as reprisal because of his complaints regarding Graham's conduct. At the hearing, the complainant described several specific situations of alleged harassment that occurred in his third period of employment:

i. While seated at his desk within the first week of employment, Graham sexually solicited a young female customer and told her not to worry about the complainant's presence at the other desk, stating that the complainant was "a moron";

ii. Early in the complainant's employment, Graham removed his pants in the complainant's presence and proceeded (naked from the waist down) to dry his hair in the hallway. The complainant expressed concerns to Lyons about Graham's conduct and requested to be moved to a cubicle office. Throughout the complainant's employment, Graham continued this dressing regime and while doing so, taunted the complainant by thrusting and gyrating his hips;

iii. Early in the complainant's employment, he, Graham and Lyons were standing in the trailer hallway and Clark Menzies was in his office. Graham exposed his penis to the complainant. Lyons remarked to the complainant "why don't you fluff it up for him" and Graham said "would you ever suck a dick you didn't like". Both Graham and Lyons laughed at the complainant. The complainant advised Menzies about his concerns regarding this conduct and Menzies replied that it was "just fun" and "horseplay";

iv. While attending to a customer in his cubicle office, loud grunting noises associated with pornography could be heard coming from Graham's desk on the other side of the partition wall. The complainant's customer became angry and left. The complainant advised Lyons about his concerns regarding loud pornography interfering with his work;

v. On one occasion, Graham told the complainant that he had left a gift for the complainant on his desk. The complainant found a beer bottle filled with urine on his desk and angrily complained to Lyons;

vi. On one occasion, Graham told the complainant that he had masturbated and left ejaculate at the complainant's desk and asked the complainant if the complainant would like him to do it again. On his desk, the complainant found (and later cleaned) gelatinous spots;

vii. In September 2006, while attending to customers in his cubicle office, the complainant heard loud laughter and hooting from Lyons' office. When the complainant went to Lyons' office to ask that the noise be curtailed, he observed Graham showing Lyons a video on Graham's cell phone. The video showed a woman performing fellatio on Graham. The complainant declined Graham's invitation to watch the video and returned to his customers, who refused to continue to do business because of the commotion; and

viii. At a company barbecue, Graham asked the complainant if the hot dog he was eating felt like "the real thing". This comment was overheard by Todd Menzies, who told a nearby child to stay away from "that man", in reference to Graham.

19It is noteworthy that both Lyons and Graham acknowledged that the cell phone video incident occurred generally as described in scenario vii. Lyons testified that he, Graham and a third salesperson were in his office when Graham showed them a video of Graham receiving fellatio from a woman. Lyons recalled they all laughed loudly and they likely could be heard in the complainant's cubicle. Graham testified that he had filmed the cell phone video of himself. He testified that he believed, and currently continues to hold the view, that there was nothing inappropriate about showing the video to individuals in the workplace he considered to be his friends, namely Lyons and Dileva (the other salesperson). Graham stated he "distinctly" recalled at some point during this event asking the complainant if he wanted to see the video, to which the complainant replied no. Neither Lyons nor Graham believed that there were customers in the trailer.

20In addition to the above-listed scenarios, the complainant alleges that, throughout his employment, Graham watched pornography on his computer at a loud volume and, on one instance, he observed Graham masturbating while watching pornography. The complainant alleges he asked Graham to turn down the volume, but Graham told him to mind his own business. The complainant recalled one time when Clark Menzies directed Graham to turn down the volume. The complainant described the pornography as graphic male-female sex, although he suggested that he and Antonio Crimi, another salesperson, once saw what looked like child pornography.

21Under cross-examination, the complainant accepted that he "glanced" at the pornography if someone told him to look at something interesting on the computer screen; however, he maintained that he never fully watched pornography. He acknowledged that he was familiar with a pornographic website, popular amongst the used car sales team, called "The Hun". Also when challenged under cross-examination about his evidence that he and Antonio Crimi observed child pornography, the complainant resiled from the suggestion that it was child pornography and instead offered that what he saw may have been young women dressed as teenage girls.

22The complainant further alleges that, throughout his employment, Graham frequently exposed his penis and routinely told the complainant to "suck my dick" or words to that effect. The complainant testified that, when Graham exposed his penis, he told Graham to "get lost" or asked Graham what was wrong with him, to which Graham would reply the problem was with the complainant. The complainant further alleges that he advised Lyons on several occasions that he could no longer tolerate Graham's behaviour. The complainant alleges that Lyons generally responded that he would take care of it or told the complainant to ignore Graham and focus on selling cars.

23The complainant alleges that, shortly after he expressly complained to Lyons regarding one of the above-listed scenarios, Clark Menzies called him into his office and shouted at him stating that he was a whiner, poisonous and should shut up because he didn't deserve to work there. The complainant testified that he was humiliated because Menzies' office door was open and everyone in the trailer could hear Menzies shouting. The complainant stated he simply walked out of the office without saying a word.

24The complainant was challenged in cross-examination regarding the amount of time he and Graham were together in the trailer, given that they worked opposite shifts. The complainant testified that they often overlapped at the start and end of shifts because he regularly came to work early, stayed later to deal with his customers, and routinely went to the trailer on his day off (Fridays). Under cross-examination, the complainant admitted that he went to the trailer on Fridays in order to play internet poker.

25The complainant alleges that the day before his dismissal, Graham exposed and jerked his penis while standing at the complainant's cubicle doorway and asked the complainant if the complainant would like to "suck his dick". The complainant alleges that Clark Menzies was present in the adjacent office. The complainant alleges he told Menzies that he was being sexually harassed by Graham and demanded that something be done about it. Menzies simply told Graham to "put it in his pants".

26The complainant alleges that, when he arrived at the trailer the next day, he was called into Lyons' office for a meeting with Lyons and Rick Barnes, a senior manager with Menzies Chrysler. The complainant alleges that Lyons advised him that the company was going in a different direction, his attitude "wasn't healthy" and, as such, the company had decided to let him go. The complainant alleges that Lyons refused to answer when he asked if the decision to dismiss had anything to do with his complaints about Graham.

27In cross-examination, the complainant acknowledged that he was twice dismissed during his second period of employment with Menzies Chrysler. He was dismissed once for a verbal altercation with Ajeet Ahuja, Assistant Sales Manager of new cars. The complainant alleged that he called Ahuja "a fucking asshole" for selling a car to his customer. The complainant denied the respondents' allegation that he used a racial slur against Ahuja. However, Ahuja (who self-identifies as Indian) contradicted the complainant. Ahuja recalled that the complainant was angry with him because he sold a car to a customer who had been speaking to the complainant. Ahuja testified that the complainant called him a "fucking asshole and fucking paki". Ahuja reported the incident to Brad Menzies, who promptly dismissed the complainant. Shortly thereafter, the complainant asked Brad Menzies for his job back and Menzies sent the complainant to ask Ahuja for his approval. Ahuja did not object and the complainant returned to work.

28The complainant was dismissed a second time following a restaurant dinner hosted by Menzies Chrysler for staff in August 2005. The complainant recounted that the dinner occurred about a week after his sister's death and that he was still very distraught. Graham had worked his first shift that afternoon and had already sold three cars. The complainant alleged that at the dinner, other staff teased him about how to sell cars suggesting that he needed help and Graham sarcastically offered to assist him close deals. The complainant also alleged that negative comments were made about his sister's death, which he perceived as "meddling" in his personal matters. The complainant testified that, as a result of the teasing, he told everyone to "fuck off" and left the dinner. He was dismissed the next day.

Antonio Crimi

29Antonio Crimi commenced employment with Menzies Chrysler in August 2006. He worked in the cubicle office next to Lyons' office on the same shift as the complainant for approximately four weeks. Crimi was dismissed in October 2006, approximately one week after the complainant, due to poor sales performance.

30Although the respondents attempted to discredit Crimi's testimony as that of a disgruntled employee, I found him to be a credible witness. Crimi had a clear memory of the events and gave his testimony in a forthright manner. He did not attempt to hide his poor sales record or the fact that he was upset when he was dismissed by Menzies Chrysler. Crimi also candidly admitted that he was unfamiliar and uneasy with the locker room machismo that pervaded the used car trailer. Further, not all of Crimi's evidence was favourable to the complainant, including his testimony that the complainant played internet poker during work and his contradiction of the complainant's suggestion that they had witnessed child pornography.

31Crimi accepted that, given his brief employment, his and Graham's shifts ran back to back less than 10 times. Crimi testified that, nevertheless, there were other situations when he and Graham overlapped in the trailer, for example when he stayed late to deal with a customer, if Graham had to arrange for a car delivery, or when they worked concurrently on Saturdays.

32Crimi testified that he observed both Graham and Lyons watch pornography while at work. Crimi testified that he was disturbed by how loudly Graham played the pornography as the sounds of "grunting, hollering and screaming" could be heard throughout the trailer. Crimi acknowledged that Graham did not play pornography if his own customers were around; however, he alleged that Graham did not turn off the pornography if customers of other sales staff were around.

33Crimi testified that he expressed his concerns to Lyons several times about the loud pornography. Crimi recounted one occasion when he and Lyons were working on a deal together and things "got heated" because he asked Graham to turn down the volume of the pornography. Crimi testified that Graham called him "a faggot" and said "if you don't fucking like it you can quit". Crimi recalled that Lyons merely responded by saying "just relax". Crimi testified that, after this heated incident, he complained to Clark Menzies about Graham's loud pornography and its impact on his work. Crimi believed that Menzies appeared concerned and recalled that Menzies once told Graham to turn down the volume. Crimi conceded that he never expressed any concerns to Brad or Todd Menzies even though he also worked with them in the new car sales department.

34Crimi testified that he personally observed an incident wherein Graham exposed and introduced his penis to a customer. Crimi recalled that Lyons, Shawn Kunkel (another Menzies Chrysler employee) and a customer (Kunkel's cousin) were in Lyons' office. Crimi recalled that he was standing in the hallway near Lyons' office when someone called out for Graham, who was likely changing his clothes, to come over. Crimi testified that Graham, naked from the waist down, walked into Lyons' office, shook the customer's hand and introduced his penis as his friend "Tommy Two Tone". Crimi testified that the customer seemed startled, but then laughed along with Graham, Kunkel and Lyons.

35It is noteworthy that both Lyons and Graham acknowledged that the foregoing incident occurred generally as described by Crimi. Lyons recalled that he was sitting at his desk discussing a car deal with Kunkel's cousin when Graham showed up "joking and whipping his penis around". Lyons recalled Kunkel's cousin laughed and said "get that buddy away from here". Graham admitted that he walked into Lyons' office "without anything on as a joke"; however, he denied that he introduced his penis.

36Crimi alleged that Graham frequently changed his clothes in the middle of the trailer and blow dried his hair in the hallway without his pants on. Crimi acknowledged that Graham positioned himself in the hallway so that he could plug in his hair dryer and use the back of the "OPEN" sign to look at his reflection. Crimi testified that Graham's state of undress caused him to feel uncomfortable and that he once asked Graham to change in the washroom, to which Graham responded "what, don't you like it".

37Crimi described Graham as someone who "talked vulgar" and "liked an audience". Crimi testified that it was better not to say anything to Graham because it would lead to an argument. Crimi recalled that the complainant and Graham would frequently have such arguments with both swearing at the other, often resulting in Graham shouting "suck me off". Crimi acknowledged that, notwithstanding this animosity, the complainant and Graham went out for drinks with other Menzies Chrysler employees. Crimi acknowledged that, during their mutual shift, he and the complainant often discussed their concerns and criticisms of Graham.

38Crimi recalled the incident when Clark Menzies shouted and swore at the complainant. Crimi testified that he was in the trailer and heard Menzies yelling at the complainant calling him "a fucking cancer". Crimi testified that, based on his discussions with the complainant prior to and after this incident, he believed that Menzies was angry with the complainant for complaining about Graham.

Denis Brideau

39Denis Brideau commenced employment with Menzies Chrysler as a car detailer in mid-September 2005 and was laid off due to lack of work in mid-October 2006. His duties involved detailed cleaning and polishing of trade-in cars. Brideau worked the evening shift and attended at the used car trailer once or twice an evening to collect the vehicles that Lyons assigned for him to clean. Brideau testified that he often arrived at work an hour or more early because he loved his job, and enjoyed hanging out at the trailer talking with the used car sales staff.

40The respondents suggested that Brideau was an untrustworthy witness because he had been dismissed, had a close relationship with Crimi, and his wife has an outstanding vehicle claim against Menzies Chrysler. I found Brideau to be fair and forthcoming. It was apparent that Brideau was a loyal employee during his employment with Menzies Chrysler. He described his time with the corporate respondent and his interactions with Graham in a generally positive manner. Brideau was upfront that, for the most part, he liked Graham and Lyons and enjoyed their company. He did not embellish his evidence to favour the complainant. In fact, on certain points, Brideau's testimony contradicted the complainant's and Crimi's evidence. For example, although he confirmed that Graham frequently watched pornography, Brideau testified he never saw or heard Graham display pornography if a customer was present. Brideau recalled that Graham's desk was positioned so that Graham could both watch his computer and keep an eye out for customers through the trailer windows.

41Brideau recounted an incident when he was sitting in Lyons' office and Graham entered the office, urinated into two empty beer bottles and placed the bottles on Lyons' desk stating "Mark is my bitch — he'll empty them for me". Brideau believed that Graham did not want to leave the trailer to use the washroom in the main building because he had a customer. Brideau recalled Lyons smiling during the incident.

42Brideau testified that Graham "wasn't shy to show off his penis". Brideau stated that Graham often walked around the trailer with his pants off when dressing and drying his hair. He recalled that Graham's hair was almost shoulder length and that it took Graham about 10 to 15 minutes to dress and dry his hair. Brideau indicated that he observed Graham "strut" around with his pants off between five to ten times.

43Brideau acknowledged that he got along with Graham and that Graham treated him fine, except for one occasion which disturbed Brideau. Brideau testified that one evening while standing in the trailer hallway, Graham put his arm around Brideau and laughingly told Brideau, using lewd terminology, that he, Graham, had a sexual dream about Brideau's wife. Brideau recalled that Lyons, who was present, laughed at the story. Brideau testified this incident caused him to lose respect for Graham.

44Brideau acknowledged that vulgar language was common in the trailer and the complainant also used profanities. Brideau testified that, while other sales staff used crude language, he was more troubled by Graham's "suck my dick" comment because it was often uttered when Graham exposed, or gestured, with his penis.

Mark Lyons

45Personal respondent Mark Lyons testified that he had approximately 25 years of experience in new and used car sales and management, having worked at numerous car dealerships, including Davey Auto Sales. Lyons was employed by Menzies Chrysler from December 2002 to January 2008. He was the complainant's co-worker during his first period of employment and was the used car sales supervisor during the complainant's second and third periods of employment.

46Lyons testified that, during the complainant's first and second periods of employment, all used car sales staff, including himself and the complainant, played card games, engaged in practical jokes, used vulgar language and watched pornography on the work computers. Lyons testified that this type of behaviour continued during the complainant's third period of employment and, on occasion, even Clark Menzies watched pornography if called over by staff to join in the viewing.

47Lyons testified that the "locker room" atmosphere was a way for sales staff to keep themselves "amused" and "pumped up" to be "competitive" and "aggressive" while waiting for customers. Lyons testified that, based on his work experience, the "locker room" atmosphere was commonplace in used car sales, except at the Davey dealership. There was no swearing or pornography at Davey Auto Sales and Lyons attributed this to the fact that owner/operator Jeff Davey "ran a tight ship".

48Lyons testified that he personally watched pornography at work "sometimes once a day" for a few minutes at a time. He alleged that he knew the complainant watched pornography because they showed it to each other. Lyons testified that sales staff seated at the central desks surveyed the car lot through the windows to warn others to turn off the pornography if a customer was around. Lyons alleged that neither the complainant, nor Crimi, ever complained to him about pornography, how loudly it was played and/or that it adversely impacted their work.

49Lyons also rejected as false most of the examples of harassment which the complainant alleged to have experienced. Lyons testified that he never saw Graham dry his hair with his pants off. Lyons denied that he told the complainant to "fluff" up Graham. Lyons acknowledged that Graham urinated in empty beer bottles stored in Lyons' office; however, Lyons denied that any such beer bottle was left on the complainant's desk. Lyons described the vulgarities used by sales staff and, in particular Graham's "suck my dick" comment, as a form of male humour. Lyons alleged that all used car sales staff understood the comments to be in jest, no one complained about it, and the complainant himself frequently used crude language.

50While testifying in examination-in-chief, Lyons acknowledged that Graham was a "big exhibitionist" and that, in reference to his penis, Graham was "proud of himself". Lyons described that, as part of Graham's boastful exhibitionism, Graham would "swing his penis around" in an effort to joke with others. Lyons testified that the staff responded by telling Graham to "get lost" when he swung his penis around them. Lyons acknowledged that Graham sometimes swung his penis around when he was changing his clothes. Lyons alleged that occasionally other sales staff, including the complainant, encouraged Graham's exhibitionism. Specifically, Lyons recalled one instance when he heard the complainant tell Graham, who had his penis exposed, to "go show Ossie". Lyons testified that no one complained to him about Graham's exhibitionism.

51Although his memory was vague and inaccurate regarding the complainant's second period of employment, Lyons recalled that the complainant was twice dismissed: once for uttering a racial epithet and once for his behaviour at a company dinner. Lyons' testimony regarding the termination of the complainant's third period of employment was also patchy and contradicted by the evidence of other witnesses. Lyons testified that he learned from the service department that the complainant had been "badmouthing" the company to a long-time customer. Lyons testified that he told Clark Menzies about the "badmouthing" and Menzies, consequently, dismissed the complainant. Lyons did not testify to any other role in the dismissal.

Thomas Graham

52Personal respondent Tom Graham has worked at Menzies Chrysler since August 2005. Graham commenced employment the day before the complainant was dismissed from his second period of employment. Graham noted that throughout his career he has been a top seller and is accustomed to dealing with the jealousy his success engenders amongst his co-workers.

53Graham attributed the animosity he experienced from the complainant at the restaurant dinner as rooted in such jealousy. Graham recounted that during the dinner he told the complainant that they could work together and offered to shake the complainant's hand, but the complainant swore at him. Graham recalled that someone had mentioned that the complainant's sister had passed away, but denied that there were any mean-spirited remarks in that regard.

54Graham testified that he has been in used car sales for 25 years and, throughout his career, he observed that used car sales operations are typically segregated from the main dealership, predominated by men (he has never worked with a female sales person) and like a "locker room". Graham testified that the "locker room" environment in the Menzies Chrysler used car trailer involved a lot of joking around, coarse language, pornography and practical jokes. Graham testified that these behaviours instantly stopped if a customer was present. He pointed out that he would never have been able to sell 30 or 40 cars a month by fooling around in front of customers. He confirmed that he and the complainant initially shared the central area of the trailer until the complainant moved into a cubicle office. Graham explained that, after the complainant moved, he shifted his desk so as to have a more private view of his computer screen while still being able to watch the car lot through the windows.

55Graham testified that the complainant never indicated discomfort with any of his language. Graham stated that he "may have said suck my cock" to the complainant about "a dozen times", but he never made the remark with his pants off. He testified that it was understood by all sales staff that such crude language was a joke and obviously just "guy talk" since neither he, nor the complainant, were gay. According to Graham, the complainant "was one of the boys" when it came to drinking beer and using vulgar language, although Graham did not recall the complainant telling "dirty jokes".

56Graham acknowledged that he watched pornography at work (never at home) and that he "might fit it in three times a week". While describing examples of pornographic material available on the "The Hun" website, Graham laughed out loud recalling an episode which he dubbed "busty wife getting it from a neighbour". Graham denied that he watched pornography or played it loudly when customers were around. Graham testified that there was a period of time during the summer of 2006 when his computer speakers were stolen so he could not have played the pornography loudly. He further denied that he has ever masturbated at work.

57Graham testified that Clark Menzies watched pornography with sales staff, but never on his own computer. Graham alleged that the complainant viewed pornography and that they showed it to each other. Graham testified that, however, he didn't "remember Dave watching pornography the way he played poker". Graham recalled that the complainant occasionally came to work early, hung around later or came in on Fridays just to play internet poker. Graham testified that the complainant was "obsessed" with poker and sometimes became so preoccupied that he would forego customers to continue playing. Graham acknowledged that he and Lyons also occasionally played internet real money poker along with the complainant.

58Graham denied that he was aware of any significant problems between himself and the complainant. Graham described their relationship as "fine" and pointed out that, on occasion, he and the complainant had drinks with other sales staff at a local hangout. Graham also acknowledged that he liked Denis Brideau and that Brideau drank beer with him at the trailer on his Tuesday night shifts. He stated that Brideau "liked to be one of the boys" and spend time talking to the used car sales staff. Graham alleged that he had never met Brideau's wife and further denied that he made any lewd comments about her. He accepted that Brideau may have seen him naked while he changed his clothes; however, he rejected the idea that he strutted around naked while dressing and drying his hair.

59In regards to changing his clothes in the trailer, Graham testified that he changed from his work attire to his casual clothes at the end of a shift. He explained that he changed in the trailer because management did not permit him to change in the main washroom due to the concern that he might be seen by customers. Graham asserted that, because they worked opposite shifts, the complainant likely only witnessed him changing his clothes about a dozen times. Graham testified that his entire dressing regime took only a few minutes and that he usually dried his hair while fully clothed. Graham acknowledged that he did not wear underwear.

60Graham further acknowledged that there were a couple of occasions when he was joking around with his genitals exposed. He recounted one instance when he was naked, except for his cowboy boots, and held two hair dryers in his each hand [sic] pretending to shoot pistols. Graham stated that this was "meant to be in fun". Graham recalled this situation was witnessed by the complainant, Lyons and others, and he believed that everybody, including the complainant, laughed. Graham contended that he did not know the complainant was offended by such behaviour.

61Graham acknowledged another incident wherein he exposed his penis as a joke and claims that he was prodded to do so by the complainant. He stated that, as a result of the complainant's urging, he swung his penis from "side to side" in front of Ossie, who responded that he would "smoke it later". When questioned why he believed the complainant encouraged him to expose himself, Graham testified that he believed the complainant was setting him up to look stupid.

62Graham testified that practical jokes were commonplace in the trailer. He recalled that he once filled up a beer bottle with urine and left it on Lyons' desk. Lyons realized it was a practical joke when he felt the warm bottle. Graham denied that he played any such beer bottle/urine prank on the complainant and suggested that the complainant was using Graham's joke on Lyons as a way to falsely buttress his complaint. Graham denied the allegations of ejaculating on the complainant's desk and also denied the alleged exchange at the company barbecue.

63While Graham conceded that, in hindsight, some of his activities, such as exposing his penis to Ossie, may have been "a stupid thing to do", he was steadfast that his behaviour was accepted in the used car trailer environment. As previously noted, Graham was emphatic that there was nothing inappropriate in sharing the cell phone video amongst his co-workers whom he considered to be friends. Graham further testified that recently, during the course of this hearing, Todd Menzies got rid of the trailer and consequently, the used car sales team is now located in the main showroom. He testified that the atmosphere in the showroom is not the same because the trailer was "a lot more fun" and now there is "less freedom" in the showroom with "all eyes on you".

Clark Menzies

64Personal respondent Clark Menzies testified that he is part owner of Menzies Chrysler and is the manager of the used car sales operations. Although his duties included supervising the used car sales team, Menzies testified that he has never considered himself as "a boss". He testified that he tried to make the atmosphere "comfortable" for the sales staff because, given the amount of slow time between customers, he believed that staff should be allowed to have fun and entertain themselves so long as "it wasn't hurting anyone".

65Menzies recalled that he had a good relationship with the complainant during his first period of employment and that the complainant was "trained very well" at the Davey dealership. Menzies testified that he was unaware of any performance concerns during the complainant's second period of employment until his return from vacation in August 2005 when he was informed that the complainant was dismissed due to conduct at the company dinner. Menzies recalled that, around December 2005, the complainant called him several times asking to return to work at Menzies Chrysler. After consulting with his brothers, Menzies re-hired the complainant in March 2006 upon the expressed understanding that the complainant was required to get along with Graham.

66Menzies recalled that, while a relaxed atmosphere had previously existed in the trailer, pranks and pornography were more prevalent during the complainant's third period of employment. Menzies stated that there were lots of laughs, jokes and profanities "like a hockey dressing room". Menzies acknowledged that the two main activities engaged in by sales staff during the slow time was watching pornography and gambling and that the complainant, Lyons and Graham all participated in these activities. When questioned in examination-in-chief as to what steps he took when he observed staff participate in these activities, Menzies stated that staff were not allowed to do so if customers were around, but, otherwise, he tried to foster a work environment where people "aren't under management's thumb and where they can have fun but still do business when it was there". With respect to employees watching pornography, Menzies noted that he would tell staff to turn down the volume. Menzies acknowledged that he viewed pornography on "several occasions" with staff.

67Menzies observed that, during his third period of employment, the complainant became heavily involved in playing internet poker to the point that Menzies believed it was impacting on the complainant's work. Menzies also observed that there was friction between the complainant and Graham, and that the complainant's sales were dropping. Menzies stated that the complainant never came to him with any complaints regarding Graham's conduct and, similarly, he did not recall Crimi speaking to him about any concerns.

68Menzies recounted the incident, during the complainant's third period of employment, when he learned from Lyons that the complainant had been "badmouthing" both Lyons and the company to a customer. He recalled being livid when he called the complainant into his office. Menzies recalled shouting at the complainant that he "was a cancer" and that he "couldn't be airing laundry with customers about Mark". Menzies stated that the complainant was shocked and just walked out of the office.

69Menzies testified that near the end of September 2006 he was "getting pressure" from Lyons to dismiss the complainant because Lyons said the complainant was "a detriment to the business". Menzies recalled that he was going on holidays for the first two weeks of October so he told Lyons to wait until he returned from holidays to deal with the complainant. However, the complainant was dismissed during Menzies' absence on September 30, 2006. Menzies testified that to his knowledge Rick Barnes, along with someone else, terminated the complainant's employment.

Shawn Kunkel

70Shawn Kunkel worked at Menzies Chrysler from March 2004 to March 2009 in various areas, including new and used car sales and the service department. At different points in his employment, he worked with the complainant, Lyons, Menzies and Graham. Kunkel was plainspoken, appeared to have nothing to gain by testifying in this proceeding and he did not appear to hold a grudge with any party or person. It was apparent that he tried his best to remain neutral in recounting his evidence.

71Kunkel testified that he was good friends with the complainant throughout all of his employment at Menzies Chrysler and that they socialized outside of work. Kunkel recalled that the complainant liked his job and often came in to work early and stayed late. Kunkel described the used car trailer as a "lax" environment, "like a locker room" with lots of joking and practical jokes. Kunkel testified, for example, that he once placed a racy screen saver on the complainant's computer picturing two men in a sexual act. Kunkel recalled that the complainant laughed at it and told him to remove it. Kunkel testified that the used car sales staff, including the complainant and himself, watched pornography, although he and the complainant mostly played euchre and poker.

72Kunkel witnessed the incident wherein the complainant used a racial slur against Ajeet Ahuja. He recalled that he heard the complainant call Ahuja "a fucking paki" and that he told the complainant to apologize, but the complainant refused to do so because the complainant believed that Ahuja had taken a deal from him. Although Kunkel was present during the restaurant dinner, he recalled little about the evening except that the complainant was upset coming in to the dinner and that there were some comments "back and forth" between the complainant and others at the table.

73Kunkel confirmed the incident involving his cousin wherein Graham exposed his penis. Kunkel testified that he called Graham into Lyons' office to meet his cousin, but Graham "forgot his pants". Kunkel stated his cousin thought the situation was "hilarious".

74Kunkel testified that, during the complainant's third period of employment, the complainant seemed "quite irritable about things that were going on" and that it seemed like "a lot of it stemmed from Mr. Graham". Kunkel testified that he believed the complainant's irritability was due to the competition with Graham, but he acknowledged that, in fact, he did not know what was "aggravating" the complainant. Kunkel noted that the "frustration over whatever it was, was eating him up inside".

Andrew Mitchell

75Andrew Mitchell has worked as an automotive technician in the service department of Menzies Chrysler for over 20 years and continues to be employed there. Although Mitchell's perspective was critical of the complainant and fiercely defensive on behalf of the respondents, his testimony was blunt and revealing about the dynamics between the complainant and Graham and the "goings on" at the trailer. While I have reservations regarding Mitchell's one-sided perspective, I accept Mitchell's evidence regarding the day-to-day interactions between the complainant and Graham.

76Mitchell testified that, as part of his duties, he attended at the used car trailer twice a day in order to report on car maintenance matters. Mitchell testified that he enjoyed his visits to the trailer because it was a fun, "locker room" atmosphere, involving lots of joking, swearing, card playing, gambling and beer drinking. Mitchell recalled that the used car sales staff would "have porn going on" and that "the computer was like their best friend". Mitchell testified that the atmosphere at Menzies Chrysler's used car trailer was no different from other used car workplaces where name calling is the norm, to the extent that "if you're dark you're a nigger, if you're feminine you're a faggot. Same as any other dealership".

77Mitchell noted that he was familiar with the complainant from his two previous periods of employment with Menzies Chrysler and that they kept in touch outside of work. Mitchell was present at the restaurant dinner and recounted that the complainant was rude and refused to shake Graham's hand.

78Mitchell testified that, during his third period of employment, the complainant was "very unhappy" and "it seemed like Tom Graham was his biggest problem". Mitchell perceived the complainant's animosity towards Graham as jealousy because Graham was outselling the complainant. Mitchell testified that the complainant complained "non-stop" about Graham and that the complainant detested when Graham changed his clothes and exposed his penis. Mitchell described a myriad of negative comments that he heard from the complainant in regards to Graham's conduct, including:

· "He'd [the complainant] say that 'He [Graham] can't be showing his cock like that — who does he think he is'";

· "He'd say 'He's an asshole' and 'He's disgusting'";

· "He'd object to it and say all gruff like 'What is he — gay — he wants everybody to look at his cock'";

· "He didn't like Tommy walking around like he owned the place"; and

· "He'd say 'He shouldn't be changing here' and he'd always complain about Tommy doing his hair".

Mitchell concluded scornfully that the complainant "didn't want to see Tommy's dick, probably because it was probably bigger than his".

79When questioned in examination-in-chief as to whether or not the complainant complained to Lyons about Graham's conduct, Mitchell stated, "I'd have to say yes because he complained to Mark about everything that Tom did". Mitchell also testified that the complainant was bothered by the fact that Graham did not expose himself in front of Clark Menzies.

80Mitchell testified that everyone had a foul mouth in the trailer, including the complainant. He stated the complainant and Graham were always swearing at each other, with Graham saying "suck my dick" and the complainant saying "you're a fucking faggot". Mitchell alleged that the complainant often spoke crudely and derogatorily about women.

81Mitchell testified that he saw Graham undress in the trailer at least three times a week and he did not consider this to be offensive. Mitchell acknowledged that Graham would occasionally shake his hips and swing his penis around, which Mitchell perceived to be comical. He agreed that he may have thought differently if he did not know Graham.

82Mitchell recalled that the complainant was "intimidated by Graham" and that it "weighed on the complainant's mind", although Mitchell interpreted the complainant's insecurity as caused by Graham's status as the top seller.

Oreste Dileva

83Oreste Dileva worked at Menzies Chrysler in used car sales for approximately one year from September 2006 to fall 2007. Dileva was known by the nickname "Ossie". During his first month of employment, Dileva worked the same shift as the complainant and this coincided with the complainant's final month of employment. All parties identified Dileva as a neutral witness and I found him to be direct and honest.

84Dileva testified that the complainant had a very negative attitude towards Graham and Lyons. Dileva indicated that the complainant frequently complained that "Mark didn't do his job properly and Tom was an asshole". Dileva attributed the complainant's negativity to Graham's status as the top seller. He recounted an occasion when he observed the complainant going through Graham's desk stating that he was "going to get this guy one way or the other".

85Dileva testified that everyone watched pornography in the trailer. When he was expressly questioned by counsel for Graham about whether or not the complainant watched pornography, Dileva indicated he couldn't say whether or not the complainant watched pornography, but he knew everyone else was doing it.

86Dileva described the used car trailer as "a boys club". Dileva recalled one specific instance, about two weeks after he started working, when Graham was "fooling around like normal" with his penis exposed. Dileva stated he heard the complainant shout "show Ossie". Graham then appeared at Dileva's desk with his penis exposed, to which Dileva responded "leave it on the side, I'll smoke it later". Dileva indicated that he believed everyone was laughing at him and that he attributed this teasing to the fact that he was a new staff member.

87When expressly questioned by counsel for the corporate respondent about whether or not the complainant had ever complained about sexual harassment, Dileva recounted one specific incident near the end of the complainant's employment. Dileva recalled that Graham had again "pulled his penis out" when Dileva heard the complainant shout from his office. Dileva recalled the complainant shouted something to the effect of "if he carries on doing that I'm going to have him for sexual harassment" or "sort that guy out or else I'll have him for sexual harassment". Dileva recalled that both Lyons and Menzies were present in the office at that time. Dileva indicated that he thought the matter was a joke because others in the trailer were laughing.

Rick Barnes

88Rick Barnes has been employed by Menzies Chrysler and its parent company, Ajax Jeep Eagle Ltd., since 1997 as the General Sales Manager. Barnes, along with Clark Menzies, supervised the used car sales team throughout each of the complainant's three periods of employment. Barnes testified that no employee, including the complainant, had ever brought any human rights concerns to his attention.

89Barnes indicated that his duties necessitated daily attendance at the used car trailer. Barnes alleged that on "a couple of occasions" during these visits he observed the complainant watch pornographic videos and once the complainant showed him "The Hun" website. Barnes testified that he immediately instructed the complainant to "shut it down" because he considered this to be inappropriate behaviour.

90Barnes testified that, during the complainant's second period of employment, he verbally reprimanded the complainant when he heard the complainant mutter "douche bag" under his breath in reference to a female new car sales employee. Barnes believed the complainant was irate because the female employee was speaking to the complainant's customer. Barnes stated that he "was appalled" and rebuked the complainant that he was "way offside". Barnes indicated that he fully intended to formally reprimand the complainant; however, he was in a hurry heading elsewhere.

91Barnes testified that during his visits to the used car trailer he never heard employees engage in offensive name calling and never reprimanded anyone else for such conduct. Barnes commented that the used car trailer was like a "country club locker change room" where it was not uncommon for employees to change their clothes, although to his knowledge that only occurred in the private end offices of the trailer. Barnes testified that he never observed anyone walking around without their clothes on.

92Barnes testified that, on two separate instances in the summer of 2006, the complainant lewdly commented on the appearance of Barnes' genitals. Barnes testified that both incidents occurred when he was urinating and the complainant stood beside him. Barnes testified that on the first occasion he was taken aback and he told the complainant "you need help". Barnes recounted that on the second occasion he was so shocked that he responded to the complainant that "you're fucked and you need help".

93I found Barnes to be neither credible, nor a reliable witness. Barnes repeatedly offered testimony that flatly contradicted the admissions of the personal respondents and the evidence of the other witnesses regarding the events in the used car trailer, including the prevalence of foul language, vulgarities and name calling; the fact that numerous employees regularly and openly watched pornography, sometimes along with Clark Menzies; and the fact that Graham routinely undressed in the central area.

94It appears that, despite his claim of daily attendance at the used car trailer, Barnes was either totally ignorant of the reality of the trailer or was reticent to tell this Tribunal the truth. Barnes' testimony reveals that he sought to portray the complainant as the main culprit — someone he felt compelled to twice reprimand for behaviour that other witnesses testified they engaged in without any sanction even while in the presence of an owner of the dealership. And notwithstanding the fact that he professed to have previously reprimanded the complainant, Barnes' evidence was that, in the summer of 2006, he did not discipline the complainant for allegedly making lewd comments towards him. I give no credence to Barnes' allegations of such misconduct.

95Although Barnes oversaw the used car operations during both previous periods of the complainant's employment, he provided little or no information in that regard. Further, despite the fact that the complainant and both Clark and Todd Menzies testified that Barnes participated in the complainant's dismissal, no direct evidence was elicited from Barnes with respect to this key issue. He offered no insight into the corporate respondent's rationale for terminating the complainant's third period of employment or what took place at the dismissal meeting. In conclusion, I reject Barnes' evidence as unhelpful and lacking credibility.

Todd Menzies

96Todd Menzies testified that Menzies Chrysler has been in business at its Whitby location since December 2001. Previously, the business was located in Ajax where, since 1987, it operated under its corporate name "Ajax Jeep Eagle Ltd.", which continues to be its proper legal name. Menzies explained that all three brothers are shareholders in the company and work at the dealership. He is the director and president of the Board and in this capacity he reports to his brothers, the shareholders, who in turn report to him as department managers in the operations of the dealership.

97Menzies testified he was familiar with the complainant from his two previous periods of employment with the dealership and, despite the fact that he had an open door policy, the complainant never complained to him about harassment. Menzies testified that he had no role in any of the complainant's dismissals, which would have been handled by Lyons and overseen by Barnes. Menzies testified that he has never received any complaints from employees or customers regarding human rights concerns. Menzies denied that he overheard any exchange as alleged by the complainant to have occurred at a company barbecue.

POST-TERMINATION REPRISAL ALLEGATIONS

98In addition to the termination of his employment, the complainant alleges that the respondents subjected him to reprisal by: (i) filing a theft report with the police which precipitated criminal charges against him and (ii) anonymously notifying his employer Jeff Davey of the criminal charges and encouraging that he be dismissed. The complainant specifically implicates Graham in the latter allegation.

Vehicle Theft

99The complainant alleges that during his third period of employment he made an arrangement with Clark Menzies to purchase a used car (Chrysler Sebring) for his wife at the cost of $6,000 and that Menzies agreed to accept installment payments for the vehicle. The complainant took possession of the car on June 2, 2006. Some time earlier, Menzies assigned the complainant the responsibilities of subprime financing manager. The complainant alleges that he paid Menzies approximately $3,500 in several installments; however, Menzies later waived the remainder of the cost because the complainant had taken on the additional financing duties and covered for Lyons' summer vacation. The complainant testified that others at the dealership knew he had purchased the car because not only had he driven the car to work a couple of times, but his wife and his son each had driven the car to the trailer to visit him.

100Some time subsequent to the complainant's dismissal, the respondents contacted the police and reported the Sebring stolen. In June 2007, the complainant was charged with theft of the vehicle, forgery of sale documents and defrauding Menzies Chrysler. The complainant testified that he was required to attend at the police station, be fingerprinted, have his "mug shot" taken, sit in a jail cell, be questioned by the police and was ultimately charged with theft and fraud. The police took possession of the Sebring and returned it to Menzies Chrysler. The parties agreed that the Vehicle Identification Number report from the Ministry of Transportation documented that the ownership of the Sebring was officially transferred from the complainant's spouse back to Menzies Chrysler on June 26, 2007.

101In November 2008, the Crown entered into a binding agreement with the complainant withdrawing all criminal charges in exchange for the complainant's (and his wife's) undertaking to not seek legal recourse against the Crown, the police and Menzies Chrysler for their role in the criminal charges and re-possession of the vehicle.

102Brideau vividly recalled the Sebring being purchased by the complainant because he was the detailer who cleaned the car. Brideau recalled the change of ownership being processed in the front office and the complainant coming into the detailing shop and proudly showing off the car. Kunkel also recalled the Sebring and the fact that the complainant had purchased it for his spouse.

103Clark Menzies provided details about how the police were notified about the theft of the Sebring. Menzies testified that he realized the Sebring was missing when he carried out a year-end audit around December 2006. Once he discovered the Sebring was missing from the dealership, he conducted further searches and ascertained that the car was registered with the Ministry of Transportation under the complainant's spouse's name. He testified that, shortly thereafter, near the end of December 2006 or early January 2007, Lyons called the police to report the Sebring stolen and the police subsequently charged the complainant with theft. Approximately two weeks later, the police returned the car to the dealership and the vehicle ownership was transferred back to Menzies Chrysler within a day. Menzies confirmed that he assigned the complainant the role of subprime financing manager early in the complainant's third period of employment and that the complainant carried out the subprime responsibilities in addition to his regular duties throughout his employment. Menzies suggested that the complainant took advantage of this financing authority to fraudulently transfer ownership of the Sebring into his wife's name. Menzies denied entering into any deal with the complainant regarding the purchase of the Sebring.

104Lyons testified that Menzies Chrysler discovered the Sebring was missing through a physical audit. Lyons explained that the business practice was to conduct inventory checks every couple of days and physical audits on a monthly basis. Lyons recounted that he first noticed the complainant's son driving the Sebring to the dealership while the complainant was still employed with Menzies Chrysler. Lyons questioned the complainant about it, who replied that he was dealing with Clark Menzies. Lyons indicated that he made no further inquiries about the car and no one at Menzies Chrysler ever questioned him about the car. Lyons suggested that the complainant had the means to falsify vehicle records because, as subprime financing manager, the complainant had the authority to issue such documentation. Although Lyons testified that he was aware that Menzies Chrysler "reported the vehicle stolen due to non-payment", he did not indicate how he obtained this knowledge and, contrary to Clark Menzies' evidence, Lyons did not testify to any involvement in reporting the matter to the police.

Anonymous Cell Phone Message

105Around the time the complainant was charged by the police, an anonymous voice mail message was left on the cell phone of Jeff Davey, the complainant's then-employer and proprietor of Davey Auto Sales, a used car dealership in Oshawa. All parties recognized Davey as an impartial witness and I found his testimony to be even-handed and helpful.

106Davey personally trained the complainant when the complainant began working in used car sales in 2002. The complainant worked for Davey on three occasions prior to and after each of his periods of employment with Menzies Chrysler. Davey explained that it was the nature of the business for sales people to move around and he described the complainant as a good salesperson. Davey recalled that the complainant played computer games, including poker, while working; although he did not recall this to be a performance concern. Davey indicated that, while it was common for sales staff to pass time on computers, he did not allow staff to do so in the presence of customers. Davey testified that he never observed the complainant watching pornography and would consider this to be inappropriate workplace behaviour worthy of discipline.

107Davey testified that when the complainant returned to work for him in the spring of 2007, subsequent to his last termination from Menzies Chrysler, the complainant seemed less motivated than in the past. Davey also recalled that the complainant seemed especially bothered about whatever had taken place at Menzies Chrysler; however, Davey considered it to be "counter-productive" to dwell on the past and refused to engage in any such discussions.

108Davey confirmed that he received the anonymous voice mail message on his cell phone and that he transferred the message to the complainant's phone so that the complainant could provide a copy of the message to his lawyer. Davey could not recall precisely when the message was left on his cell phone. He explained that his cell phone number was easily accessible by contacting the dealership. Davey described the message as "derogatory" and "childish". The recording of the cell phone message, which was played at the hearing, was as follows:

Hey Jeff, it's a friend of yours. I just want to know if you know your salesman there, Dave Smith, little-high-and-mighty, he's been, ah, he's been charged with theft, grand theft, and fraud today, after ripping off his past employer. Just thought you'd like to know. . . know that. . . if you wanted to know that. And uh, just wanted to know if you wanted your name in the paper as well. You might wanna get rid of the loser. Bye.

109The complainant testified that Davey played him the message and, based on the voice and manner of speech, the complainant concluded the caller was Graham. The complainant alleged that Davey also said that he recognized the voice as Graham's.

110Davey denied any knowledge of who left the message. Davey indicated that he may have told the complainant that he surmised from the content of the message that it was from his past employer, but contrary to the complainant's testimony, he never suggested to the complainant that he recognized the voice as Graham's.

111Graham indicated that he had no information about the circumstances surrounding the Sebring and also had no knowledge about the anonymous message left on Davey's cell phone. Graham denied that he was the anonymous caller.

112In the course of the hearing, initially the complainant and later the respondents sought to play the recording of the cell phone message to their witnesses in order to question whether or not the voice on the recording was identifiable. Although I agreed to hear the testimony of the complainant, Davey and Graham as to their perspectives regarding the recording, I refused to allow the parties to question other witnesses about the identity of the voice. Under the Rules of Practice, the Tribunal has broad discretion to admit evidence. However, while the Tribunal may not be bound by the strict rules of evidence, evidentiary principles of admissibility, relevance and necessity remain important and appropriate considerations. I determined the proposed line of questioning could only elicit what would be inherently unreliable and potentially prejudicial evidence, which would serve little purpose and unnecessarily protract the hearing. As such, I concluded the proposed line of questioning was neither helpful nor necessary and, therefore, I refused to allow the witnesses to be questioned about whether or not they recognized the voice in the recording.

FINDINGS OF FACT

Findings Regarding the Complainant

113The respondents argued that the complainant filed his human rights complaint out of revenge, envy and for financial gain. A complainant's alleged motivation for filing a complaint is not directly relevant to determining a Code contravention and may only be potentially relevant to the extent that it derogates from the complainant's overall credibility; in the present case, I find that it does not. By all accounts, the complainant was a very competitive and proud salesperson. There is little doubt that the complainant had a real enmity towards Graham and this was, in part, fuelled by competitive resentment. However, the evidence clearly established that the complainant was also genuinely offended by Graham's lewd behaviour and especially disliked Graham because of his proclivity for exhibitionism. Several witnesses testified that the complainant was aggravated about Graham, and Mitchell's evidence directly connected the complainant's annoyance and frustration to Graham's penchant for exposing his penis. As such, I do not find the complainant had any bad faith motive in pursuing his human rights complaint.

114Based on the totality of the evidence, I find the majority of the complainant's testimony to be credible. On numerous occasions, the complainant's evidence was corroborated by other witnesses, the personal respondents' admissions, as well as supported by the preponderance of probabilities. I find that, except for the restaurant dinner, the complainant's description of the events was consistent with the overall tenor of the evidence, particularly in regards to the sexualized nature of the activities in the used car trailer. Although it is obvious that the complainant was clearly distraught about his sister's death and sensitive to being teased at the restaurant dinner, I do not need to make any findings regarding this situation as it had no direct relevance or probative value to the issues of discrimination and harassment.

115While the complainant presented as genuinely troubled by Graham's sexually charged comments and conduct, I recognize that at certain junctures in his evidence, the complainant was prone to exaggerate his assertions; specifically, his initial claim to have observed child pornography, his denial of the racial epithet, and his claim that Davey believed Graham was the anonymous caller. Although I have treated the complainant's evidence in relation to those three areas with some caution, I found the greater part of his evidence to be reliable and substantiated, as indicated in my findings of fact set out below.

116It is important to note that, while I accept the complainant's account of most of what he alleges to have occurred, the evidence also established that the complainant participated in some of the alleged impropriety. Counsel for the complainant objected to my hearing the respondents' evidence with respect to the complainant's alleged participation in the "locker room" atmosphere. Counsel for the complainant objected on the basis that, in their pleadings, the respondents expressly denied all allegations in the complaint and had not particularized their allegations that the complainant watched pornography and used sexist and racist language. Although I have some concern about a shifting line of defence, I allowed the respondents to present their evidence for a number of reasons.

117First, I was not persuaded that restricting the respondents from putting forward their full answer and defence would in any way serve the interests and object of this truth-searching exercise. Second, I was sympathetic to the respondents' submission that they were placed in this predicament by the complainant's own lack of particularity in the complaint and pleadings. Third, I believe that the concern regarding lack of notice was addressed by my requirement that the respondents provide detailed witness statements of the proposed evidence and put all potentially contradictory evidence to the complainant prior to attempting to impeach his credibility. Last, I appreciate that, to a certain extent, the root of the problem was the unusual progress of the human rights complaint. Since the complaint was referred to the Tribunal without a full Commission investigation, the typical preliminary exchange of party[ies'] positions, disclosure of information and investigative culling had never taken place. As such, I allowed the respondents to adduce evidence pertaining to the complainant's alleged participation.

118The evidence indicates that the complainant used foul language and occasionally watched pornography (although according to Graham and others far less than he played poker). However, I give little credence to the allegation that the complainant encouraged Graham to expose himself. This is contradicted by the evidence of various witnesses that the complainant loathed Graham's predilection for exhibitionism. Dileva's evidence that he heard the complainant state "show Ossie" is easily understood in the context of the teasing incident he described. I accept the complainant's suggestion that he was simply urging Graham to leave him alone and pick on someone else for his audience.

119The respondents spent considerable time cross-examining the complainant regarding his financial affairs in order to highlight, amongst other things, the fact that he declared bankruptcy in 2001—2002 and was reassessed by Revenue Canada in 2006. The respondents tendered this evidence to bolster their claim that the complainant concocted the human rights complaint as a desperate money grab. I find this evidence was entirely collateral to the real issues in this proceeding and aimed solely at impugning (unsuccessfully) the credibility of the complainant.

Findings Regarding Poisoned Work Environment

120At the outset, it is important to note that the personal respondents, individually and/or collectively, have acknowledged the following matters:

· The atmosphere in the used car trailer was imbued with profanities, crude language and practical jokes.

· Employees and management watched pornography in the trailer. Lyons and Graham watched pornography several times a week, sometimes alone and sometimes with other employees. Clark Menzies occasionally watched pornography with staff.

· Graham routinely changed his clothes in the trailer and, because he did not wear underwear, his genitals were visible while he changed.

· On occasion, Graham exposed his penis to people around him. Three specific situations in which Graham admitted to exposing his penis included: upon meeting Kunkel's cousin, pretending to be pistol shooting, and teasing Ossie Dileva.

121The respondents argued that the alleged harassment could not have taken place because the complainant and Graham rarely worked together. The evidence overwhelmingly contradicts this position. It is undisputed that for over six months the complainant and Graham worked together on Saturdays. Graham admitted that the complainant saw him undressing about a dozen times when the complainant arrived early, stayed late or came in on Fridays. Almost every witness (Crimi, Brideau, Kunkel, Mitchell, Dileva) testified to having observed interactions between the complainant and Graham in the trailer. As such, I find that, in addition to working together on Saturdays, there was regular cross-over in the trailer throughout the week between the complainant and Graham.

122I find that the evidence confirms the complainant's allegation (described in scenario ii) that while dressing Graham taunted the complainant by gyrating his hips and penis. During his previous periods of employment in the trailer, the complainant always occupied a desk in the central area which provided the first opportunity to see customers in the car lot. However, shortly after commencing his third period of employment, the complainant requested to be moved to a cubicle office, which had no window or view of the car lot, because he could no longer tolerate Graham's naked antics. In light of the respondents' portrayal of the complainant as pathologically competitive, it is troubling that no alternate explanation was offered by the respondents as to why the complainant would relinquish his regular position with the best view of customers for a less advantageous spot. Graham's own evidence, as well as the evidence of other witnesses (Mitchell, Lyons and Brideau) who also recalled Graham swinging his penis around, overwhelmingly established that Graham carried on in the manner alleged by the complainant.

123The preponderance of the evidence also bears out the version of events put forth by the complainant regarding the urine/beer bottle (scenario v). Graham, Lyons and Brideau testified that Graham urinated into beer bottles and, at least on one occasion, left a bottle filled with urine on Lyons' desk as a joke. In view of the testimony regarding the rivalry between the complainant and Graham and the types of pranks that were customary in the trailer, the evidence supports, on a balance of probabilities, the conclusion that Graham left a beer bottle filled with urine on the complainant's desk and mockingly told the complainant about it.

124Given the admissions of Graham and Lyons regarding scenario vii, there is no dispute that Graham invited the complainant to view a cell phone video that he taped of himself receiving fellatio. I find no basis in the evidence to support the personal respondents' belief that customers were not present during this particular incident. While Lyons could not recall who was watching the video with him, he acknowledged that their laughter was loud enough to be heard across the trailer and Graham "distinctly" recalled the complainant declined his invitation to view the video. Based on this evidence, I conclude that Lyons and Graham were so focused on the video that they were unaware of the presence of customers inside the complainant's cubicle.

125I find, on the balance of probabilities, that the "fluff it up" (scenario iii) and barbecue (scenario viii) incidents occurred as alleged by the complainant. I accept the complainant's evidence of what transpired in scenario iii as consistent with Lyons' evidence that Graham was a "big exhibitionist" and with Graham's admission that he told the complainant to "suck my cock" about a dozen times, sometimes in jest and sometimes in anger. I recognize that Lyons denied that he made the "fluff it up" comment; however, I prefer the evidence of Brideau who recalled his experiences of Lyons laughing along with Graham's lewd and demeaning remarks, even when Lyons himself was the object of the comment. I also find the evidence supports the allegation that Graham made the statement about the hot dog because that remark is consistent with the type of vulgar humour that other witnesses ascribed to Graham and the complainant's evidence that Graham implied that he was interested in same-sex acts. I recognize that Todd Menzies denied hearing the barbecue exchange; however, I think the more likely explanation is that Todd Menzies no longer recalls the situation. There was no reason for the complainant to fabricate this incident since the comment he attributed to Todd Menzies would suggest that the Menzies did not condone the behaviour.

126I further find that there were instances when Graham played pornography loudly when others were present around him. Although the evidence does not support the allegation that Graham displayed pornography while customers were present in the trailer, the bulk of the evidence indicates that pornography was played loudly while other sales staff were in the trailer. It was apparent from Graham's testimony and demeanour while on the witness stand that he was unabashedly enthusiastic about watching pornography in the workplace. He testified that he "fit it in about three times a week" and, at one point during his examination-in-chief, Graham laughed heartily as he relayed a raunchy description of the types of pornography that he liked to select to watch from "The Hun" website. I accept Crimi's evidence that Graham played pornography so loudly that it was disruptive. Also supporting the conclusion that pornography was played loudly was Mitchell's recollection that the pornography was always on the computers and Clark Menzies' evidence that he directed staff to lower the volume.

127A considerable amount of evidence was tendered on the issue of whether or not Graham's computer screen could be seen while ascending the stairs to the front door of the trailer. The evidence was mixed on this point, which is not surprising given Graham's testimony that, after the complainant moved out of the central area, he shifted his desk in order to have a more private view of his computer screen. While the question of whether or not the content of Graham's computer could be observed from outside the trailer may be material to the issue of whether customers were exposed to pornography, I find it of little import to the issue I must determine, namely whether or not a poisoned work environment existed inside the trailer.

128In summary, I find the evidence substantiated scenarios ii, iii, iv, v, vii and viii. However, there was insufficient evidence to support the complainant's allegations with respect to the young woman customer (scenario i) and ejaculate on the desk (scenario vi). Although Graham sometimes tried to downplay his conduct or explain away his behaviour, he nevertheless acknowledged that he engaged in certain crude comments and conduct. However, Graham was emphatic that he never sexually solicited a customer and I am persuaded that Graham was telling the truth regarding this one matter. There is no dispute that Graham was the top seller and there was no evidence of any customer complaints to Menzies Chrysler. These facts cannot be reconciled with the allegation of customer harassment. Further, none of the witnesses indicated any practical jokes involving masturbation or ejaculate. Although I find the complainant's overall version of the events to be more credible, I am unable to find the allegations in scenarios i and vi to have been made out based on the evidence before me.

Findings Regarding Respondents' Knowledge of Complainant's Concerns

129I have significant concerns with respect to the respondents' evidence that they were unaware that the complainant objected to Graham's conduct. In particular, I am troubled by Lyons' disavowal of any knowledge of complaints from either the complainant or Crimi. This is problematic for numerous reasons. First, Lyons' denial appears disingenuous when considered in the context of his witness statement, which was entered as an exhibit in the hearing. In that statement, although he maintains he did not know this related to sexual harassment, Lyons stated: "[t]oward the very end of Mr. Smith's employment, Mr. Smith told me I had to do something about Tommy". Lyons' denial is also belied by Mitchell's forceful evidence that the complainant's criticisms about Graham were "non-stop" and the complainant generally complained to Lyons about Graham.

130Further, although Lyons was not present when the complainant testified in the hearing, Lyons' description of how staff usually responded to Graham "swinging his penis around" was virtually identical to the complainant's evidence regarding how he personally responded to Graham. Both echoed that when Graham exposed his penis, the typical response was to tell Graham to "get lost". Lastly, Lyons acknowledged that he and Crimi were friends from a previous employment and because of this friendship Lyons refused to participate in Crimi's dismissal. Given this friendship, I find that it was likely that Crimi was comfortable enough to express his concerns about Graham to Lyons and, as such, I accept Crimi's evidence that he repeatedly complained to Lyons about Graham's conduct. In my view, Lyons refused to deal with Graham's behaviour in order to avoid conflict with Graham, the top used car seller. Graham himself testified that he recalled that a member of management once stated that Lyons' job was saved by Graham's exceptional sales record.

131Clark Menzies' assertion that he was unaware of the complainant's concerns regarding Graham's conduct is also unsatisfactory in many respects. The complainant testified that early in his employment he complained to Menzies about Graham exposing his penis, but Menzies dismissed Graham's behaviour as "just fun" and "horseplay". This alleged response is reflective of Menzies' self-professed management style and consistent with his characterization of the activities in the trailer. The complainant testified that he again directly complained to Menzies on the day before his dismissal when he told Menzies that Graham was sexually harassing him and demanded that something be done about it. This allegation corresponds with Dileva's recollection that, shortly before the complainant's dismissal, he heard the complainant loudly shout "sort that guy out or else I'll have him for sexual harassment" in reference to another incident of Graham exposing his penis. Dileva specifically recalled that Menzies was present in the trailer on that occasion.

132Clark Menzies admitted calling the complainant a "cancer", although he attributed the confrontation to the complainant's "badmouthing". I prefer the evidence of the complainant and Crimi, both of whom recalled that the incident related to the complainant's grievances about Graham. Further, I accept Crimi's evidence that he also complained to Menzies about Graham's loud pornography and that Menzies seemed concerned. As previously noted, Menzies confirmed that there were instances when he had asked staff to lower the volume when they watched pornography. Thus, based on all of the evidence and, in particular, that of Dileva and Crimi, I find that Clark Menzies was well-aware that Graham viewed pornography loudly in the workplace, as well as exposed himself, and that the complainant had concerns regarding Graham's conduct.

133The respondents made much of the fact that the complainant did not raise any concerns with Brad or Todd Menzies about Graham's behaviour. The complainant's reluctance to take his complaints about Graham beyond Lyons and Clark Menzies is not surprising given Clark Menzies' testimony that the complainant was re-hired on the expressed condition that he was required to get along with Graham.

Findings Regarding Termination of Employment

134I also have significant trouble with the respondents' evidence regarding the reasons for the complainant's dismissal. The personal respondents and their witnesses contradicted each other regarding the circumstances leading to the dismissal and, remarkably, no one on behalf of the respondents admitted to participating in the complainant's termination meeting.

135Clark Menzies testified the dismissal was precipitated by Lyons who was pressuring him to dismiss the complainant because he was a "detriment" to the business. Menzies' evidence lacked specificity about the actual dismissal because he says it took place in his absence; however, he testified that, to his knowledge, the dismissal was conducted by Barnes. Notwithstanding that both the complainant and Todd Menzies also confirmed that Barnes participated in the termination of the complainant's employment, Barnes provided absolutely no evidence regarding the specific rationale for, or actual circumstances of, the complainant's dismissal.

136In direct contrast to this evidence, Lyons suggested that Clark Menzies fired the complainant and that this was precipitated by the complainant "badmouthing" the company. Except for apprising Menzies about this alleged "badmouthing", Lyons did not allude to having any involvement in the complainant's dismissal. However, Menzies placed the "badmouthing" incident as having occurred weeks before the complainant's dismissal and all of his knowledge about the alleged "badmouthing" was hearsay from Lyons.

137Lyons' evidence regarding "badmouthing" was, in its entirety, the flimsiest form of hearsay. Lyons claimed his source about the "badmouthing" was someone in the service department who received a complaint from a long-standing customer; however, that evidence was not corroborated by any other witness. Although Mitchell was a senior member of the service department and Kunkel and Mark Jeffery may also have worked in service at that time, no evidence was elicited from them about their knowledge regarding the alleged "badmouthing".

138The respondents' evidence regarding the termination of the complainant's employment was riddled with gaps and inconsistencies. In light of the respondents' failure to present any consistent or reliable evidence regarding the complainant's dismissal, I accept the complainant's evidence of what transpired. Based on the evidence of the complainant, as supported by Dileva, I conclude that the complainant was dismissed following the incident wherein Graham exposed his penis to the complainant and the complainant demanded that Menzies address Graham's sexually harassing conduct. I find that the complainant was dismissed by Lyons and Barnes the day after this incident. I also accept that, during his termination meeting, the complainant was advised by Lyons that he was being dismissed because his attitude was unhealthy. I also accept that Lyons' negative characterization of the complainant's attitude was in reference to the complainant's concerns about harassment and a poisoned work environment.

Findings Regarding Post-Termination Reprisal

139The totality of evidence leads to a number of conclusions regarding the circumstances surrounding the Sebring. I find that an arrangement existed between Clark Menzies and the complainant for the purchase of the Sebring and that dealership management knew that the complainant was in possession of the car both during and after his employment. I further find that Menzies Chrysler contacted the police in and around June 2007 and misrepresented that the car was stolen.

140I do not accept Clark Menzies' evidence regarding the alleged theft because his version of the events does not accord with the preponderance of probabilities and the evidence of other witnesses (Brideau and Kunkel) who recalled that the complainant had purchased the vehicle for his spouse. Lyons also recalled seeing the complainant's son driving the car around the dealership and learning at that time from the complainant that he had an arrangement with Clark Menzies about the car. Clearly, there was no secret that the complainant had possession of the Sebring. Further, based on Lyons' evidence regarding regular inventory checks, at least two physical audits would have been conducted between the complainant's departure and before the year-end audit, when Menzies claims he first discovered the vehicle missing.

141In my view, the allegation that Menzies and the complainant had an agreement about the purchase of the Sebring is a more realistic picture than the scenario that the complainant stole the vehicle from the used car sales lot, but nevertheless openly drove it around the dealership. The evidence that best supports the complainant's position that he and Menzies struck a deal for the purchase of the car was Lyons' testimony as to why the police were contacted. Lyons unambiguously stated that Menzies Chrysler "reported the vehicle stolen due to non-payment" (emphasis added). This evidence indicates that Menzies Chrysler's real grievance was deficient payments and not that the car was secretly and fraudulently taken from the dealership.

142I also do not accept Menzies' evidence that the matter was reported to the police in early January 2007. Rather, the weight of the evidence points to the conclusion that the police were contacted in June 2007. Menzies recalled that it took only two weeks from the time the matter was reported to the police for the vehicle to be returned to the dealership and only one day for transfer of ownership. The documentary evidence confirms that the vehicle was transferred from the complainant's spouse back to Menzies Chrysler on June 26, 2007.

143Further, the anonymous cell phone message, which indicated that criminal charges had been laid that very day, was left while the complainant was an employee at Davey Auto Sales, where he worked from spring to fall of 2007. While I believe that the caller had to be somehow connected to Menzies Chrysler in order to be privy to the information about the police charges in such a timely manner, I am unable to make a finding as to the identity of the anonymous caller based on the evidence before me.

144The documentary evidence indicates that the complainant's human rights complaint was filed with the Commission in December 2006 and that the respondents advised the Commission that they refused to participate in its process in the spring of 2007. I am satisfied, based on all the evidence, that Menzies Chrysler contacted the police to report the Sebring stolen in and around June 2007, subsequent to receipt of the human rights complaint and notification about the Commission process.

ANALYSIS AND DECISION

145The picture that emerges from my factual findings is that the complainant came from a no-nonsense work setting at Davey Auto Sales to a more casual culture at Menzies Chrysler. During his third period of employment at Menzies Chrysler, the complainant found that the relaxed atmosphere at the trailer had become rife with sexualized talk and antics, often perpetrated by Graham. Management accepted this "locker room" environment as the norm for promoting collegial competition amongst the all-male sales team and for generating sales. The picture further reveals that the complainant had a deep dislike for Graham and, in particular, despised Graham's exhibitionist tendencies. Despite complaints, Lyons and Menzies ignored Graham's sexually charged behaviour and ultimately decided, likely because Graham's high sales were more important to the company, to get rid of the complainant because of his unhealthy attitude. Around June 2007, shortly after contact by the Commission regarding the human rights complaint, the corporate respondent reported a car purchased by the complainant to have been stolen from the dealership. Contemporaneously, in an attempt to induce the termination of the complainant's employment, a vindictive anonymous message about the alleged theft was left for the complainant's then-employer. In my view, these factual findings support a conclusion that the complainant experienced discrimination, harassment and reprisal contrary to the Code.

Freedom from Discrimination and Harassment

146The respondents deny that the complainant experienced discrimination and/or harassment on the basis that the impugned comments and conduct were not "because of" the complainant's actual sex or sexual orientation. The respondents further argue that the impugned behaviour cannot be considered vexatious because it was an accepted part of the "locker room" atmosphere and was not known or ought reasonably known to be unwelcome.

147Historically, sexual harassment has been viewed as a gendered harm because reported cases of sexual harassment were most often perpetrated by a male in a position of authority over a female victim. However, currently, there is greater understanding of the various forms of sexual harassment and a growing awareness that men can also be subjected to sexual harassment. As stated by the Supreme Court of Canada in its seminal decision of Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, 1989 CanLII 97 at § 57 [10 C.H.R.R. D/6205 at § 44452] ("Janzen"): "[p]erpetrators of sexual harassment and victims of the conduct may be either male or female".

148In Janzen, the Supreme Court of Canada articulated an expansive interpretation of the concept of sexual harassment. The Supreme Court explained that sexual harassment encompasses "conduct which creates a 'hostile environment' by requiring employees to endure sexual gestures and posturing in the workplace" (at § 54 [C.H.R.R. § 44449]). The Court noted that this "hostile environment" form of sexual harassment manifests ". . . as unwelcome conduct of a sexual nature that detrimentally affects the work environment. . . " (at § 56 [C.H.R.R. § 44451]). The Court recognized that sexual harassment can entail "any sexually-oriented practice" that adversely impacts an employee's work performance, work conditions or personal well-being. The Supreme Court's interpretation of sexual harassment clearly contemplates a broad range of behaviours with respect to matters of sex, including, but not limited to, sexual gestures, sexual posturing and sexually-oriented practices, which negatively impact the work environment. As such, sexual harassment law provides protection from the imposition of sexually inappropriate overtones and undercurrents in the workplace.

149In their first argument, the respondents suggest that in order for there to be a finding of sex or sexual orientation discrimination/harassment the complainant must prove that he was targeted because he is a man and/or heterosexual or homosexual. Or in other words, the complainant must demonstrate that "but for" his gender or sexual orientation he would not have been harassed. I reject this position. The respondents' focus is misplaced.

150The Code provides that all persons have a right to be free of discrimination (s. 5(1)) and harassment in the workplace (s. 7(2)) "because of sex". There can be no doubt that the reference to "because of sex" captures the concepts of gender, sexuality and sexual categories, as well as sexual characteristics and, therefore, includes sexually related discrimination and harassment. The focus of a sexual harassment inquiry is not strictly on the gender or sexual orientation of the parties. It is a multi-faceted assessment that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct. The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarass the victim. In the present case, Graham relied on sexual statements, sexual gestures, sexual characteristics and sexual actions to ridicule and disparage the complainant. Graham's conduct was a clear manifestation of sexual harassment fused with workplace bullying.

151The purpose of s. 7(2) of the Code is to protect employees from sex harassment and this includes inappropriate sexualization of the workplace. Human rights jurisprudence has long accepted that the "emotional and psychological circumstances in the workplace" which underlie the work atmosphere constitute part of the terms and conditions of employment: see Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 at § 6691 (Ont. Bd.Inq.) and Moffatt v. Kinark Child and Family Services (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.) ("Moffatt"). It is well-settled law that the prohibition against discrimination in s. 5(1) affords employees the right to be free from a poisoned work environment in relation to Code-protected grounds. If sexually charged comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to both ss. 5(1) and 7(2) of the Code: see Cugliari v. Telefficiency Corporation (No. 2), 2006 HRTO 7 [reported 56 C.H.R.R. D/27 and Moffatt, supra.

152Human rights jurisprudence confirms that, depending on the circumstances and context, sexualized behaviour which is not directly related to the complainant's own sexual orientation may nevertheless poison the environment and amount to harassment because of sex: see School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 [reported 52 C.H.R.R. D/1] ("Jubran"). Citing Jubran, a recent decision of this Tribunal noted that "[c]omments and conduct that are derived from derogatory stereotypes of gay men, lesbians, bisexuals and transgendered people are captured by the prohibited ground of sexual orientation, regardless of the complainant's sexual identity or the perception of the respondent": see Selinger v. McFarland, 2008 HRTO 49 [ CHRR Doc. 08-480 at § 23. As such, Graham's beliefs about the complainant's sexual orientation are not relevant to determining whether the complainant was subjected to sexual orientation discrimination.

153Although I have already found that it is unnecessary for the complainant to show that he was mistreated because he is a man, the irony of the evidence of disparate treatment is noteworthy: every witness testified that the sexualized comments and conduct would never have occurred in the presence of women. Further, although I do not need to conclude that the complainant was targeted because of his actual or perceived sexual orientation, I note that the evidence revealed that Graham frequently taunted the complainant with references to homosexual acts and imputed same-sex interest to the complainant.

154In order to constitute sexual harassment, the evidentiary burden on the complainant is to demonstrate that the impugned behaviour was (i) a course of vexatious conduct or comment, (ii) by an employer or employer's agent, (iii) unwelcome or ought to be known to be unwelcome and (iv) related to sex or gender: see Canada (Human Rights Comm.) v. Canada (Armed Forces) and Franke, 1999 CanLII 7907 (FC), [1999] 3 F.C. 653 [ 1999 CanLII 18902 (FC), 34 C.H.R.R. D/140]. The evidence established that Graham's behaviour persisted throughout the complainant's third period of employment and the impugned behaviour consisted of either direct or indirect sexual content. The comments were frequently filled with sexual innuendo and insult and focused on sexual anatomy. It is clear that Graham's behaviour went beyond merely inappropriate remarks. Graham engaged in physical gestures which were unequivocally and gratuitously sexual in nature. Not only did his comments and conduct create an inappropriately sexualized workplace, but it is also apparent that Graham carried on in this manner in order to deliberately annoy and embarrass the complainant. All the incidents that I have found to have taken place contained obvious elements of sexuality, with the exception of the beer bottle/urine incident, which was nevertheless part of Graham's pattern of offensive behaviour and mistreatment of the complainant. I find that Graham's comments and activities constituted sexual harassment and created a poisoned work environment in the trailer.

155As their second argument, the respondents suggest the impugned behaviour was not vexatious because the jocularity in the trailer, including of the sexualized variety, took place amongst an all-male group and was part of the "locker room" milieu of used car sales. The respondents submitted that the same-sex composition of the workplace rendered the behaviour accepted and acceptable — it was simply good-natured fun between "the boys". In fact, every respondent witness sought to diminish the seriousness of the trailer activities by reciting the "locker room" mantra. I reject the foregoing argument. There is no basis in law for excluding sexually vexatious behaviour from Code protection simply because it occurs in a same-sex work setting or because some of the participants accept and/or even appear to enjoy it.

156To borrow a phrase from the Supreme Court, the purpose of human rights sexual harassment provisions is to protect employees when "unwelcome sexual conduct has invaded the workplace", irrespective of the gender of the parties and the place of employment (Janzen, supra, at § 54 [C.H.R.R. § 44449]). Further, it has long been understood in human rights law that it is no defence that other employees were treated the same way: see Hughes v. Dollar Snack Bar (1981), 1981 CanLII 4304 (ON HRT), 3 C.H.R.R. D/1014 (Ont. Bd.Inq.). Last, to accept the respondents' argument that men in male-dominated workplaces are expected to tolerate crude and lewd environments is contrary to the purpose of the Code, which seeks to promote and protect the mutual respect, inherent dignity and worth of every person.

157Throughout their testimony, all of the respondents repeatedly stated that the impugned comments and conduct were a joke and that there was no intention to offend. I do not agree, and if I did, I would not find this to be a defence. As previously noted, I find that Graham often engaged in his sexually charged behaviour to harass and humiliate the complainant. Even if I were to accept the respondents' testimony that there was no intent to offend, this does not assist, because intention is not a prerequisite for determining whether or not behaviours amount to sexual harassment. The appropriateness of any comment or conduct which engenders sexualization of the workplace must be assessed against the actual or constructive knowledge of the respondent that the conduct was unwelcome. Based on the overwhelming evidence pointing to the respondents' knowledge of the complainant's concerns, I find that all of the respondents, and Graham in particular, knew or ought reasonably to have known that the impugned behaviour was unwelcome.

158The respondents further contend that they did not know, or could not reasonably have known, that Graham's comments and conduct were unwelcome because the complainant participated in the use of inappropriate language and watched pornography. I do not accept the respondents' position. The complainant's use of inappropriate language and profanities, which were commonplace in the trailer, does not necessarily negate Graham's conduct as unwelcome. A distinction can readily be drawn between inappropriate expletives or coarse language and Graham's explicit sexual expressions, such as "suck my cock", which the evidence indicates was occasionally accompanied by Graham exposing his penis.

159It is now settled law that, in the context of a poisoned work environment, tribunals must carefully consider allegations that the complainant also participated in the misconduct to determine whether the environment was a causal factor in the complainant's alleged behaviour: see Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 [ 52 C.H.R.R. D/89] (Ont. Div.Ct.) and Naraine v. Ford Motor Company, [1996] O.H.R.B.I.D. No. 23 (QL) [ 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230]; aff'd 1999 CanLII 18727 (ON SCDC), 124 O.A.C. 39 [ 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405] (Div.Ct.); rev'd (2001), 2001 CanLII 21234 (ON CA), 209 D.L.R. (4th) 465 [ 41 C.H.R.R. D/349] (Ont. C.A.); leave to appeal refused [2002] S.C.C.A. No. 69. To some extent, this proposition is applicable to the present case because the evidence indicated that the complainant resorted to coarse language to describe Graham's behaviour and to try to get Graham to stop. While the complainant may be culpable for his own use of inappropriate language, this does not excuse or nullify Graham's discriminatory misconduct towards the complainant. Nor does it excuse the failure of Lyons, Clark Menzies and the corporate respondent to take steps to address the existence of a poisoned work environment. The evidence established that the complainant was disgusted by, and protested, when Graham subjected him to crude remarks and exhibitionism. Based on this evidence, it is apparent that the respondents knew, or ought to have known, that Graham's behaviour was unwelcome. Further, regardless of whether anyone objects to, or everyone participates in, sexually charged behaviour, the employer has a duty to take steps to ensure the workplace is free from vexatious comments or conduct; see Smith, supra, and Naraine, supra.

160I also find the respondents' suggestion that the complainant himself sexualized the workplace is without merit. Although the evidence suggested that the complainant occasionally watched pornography, I did not find any credible evidence that the complainant's actions exposed other employees to pornography or disturbed the work environment for other employees, as Graham did by watching pornography at a loud volume. Again, there is a significant difference between the complainant's occasional, albeit inappropriate, viewing of pornography and Graham's frequent display of loud pornography (including his own cell phone video) and his ongoing and sometimes aggressive exhibitionism which he used to taunt and demean others. While I have not overlooked the complainant's participation in watching pornography, in the circumstances and given the nature of the acts complained of, I cannot conclude that the complainant acquiesced or contributed to the poisoned work environment. Rather, the evidence of the respondents' witnesses confirmed that the complainant genuinely disdained and actively objected to Graham's sexually vexatious behaviour. There can be no doubt that Graham's sexually charged comments and conduct were perceived by the complainant to be offensive, were known by the respondents to be unwanted, and poisoned the work environment.

161Management at Menzies Chrysler had a responsibility to set a professional tone in the workplace and to ensure that staff is aware that discriminatory and harassing behaviour is unacceptable in the workplace. Instead, management at Menzies Chrysler not only tolerated sexual comments and conduct in the workplace, but also engaged in these behaviours. I find that management at Menzies Chrysler condoned the sexualized work environment. I further find that management failed to take the complainant's concerns seriously and/or to properly investigate the complainant's concerns. Human rights jurisprudence has established that an employer is under a duty to take reasonable steps to address allegations of discrimination or harassment in the workplace and that a failure to do so will itself result in liability under the Code: see Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd.Inq.) ("Wall") and Jones v. Amway of Canada Ltd. (2001), 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 at § 74 (Ont. Bd.Inq.) ("Jones"). As such, the corporate respondent breached its duty to provide the complainant with a workplace free of discrimination and harassment and failed to take adequate steps to address the poisoned work environment.

Freedom from Reprisal

162Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal. Reprisal has been held to be a separate ground of liability distinct from the discrimination and harassment protections of the Code. The test for reprisal includes a requirement that there be some evidence of the respondent's intention to reprise or evidence of a link between the complainant's invocation of rights and the respondent's subsequent conduct that is considered to be retaliatory. The respondent's intention may be inferred based on the complainant's reasonable perception that the respondent's action served as retaliation because of the complainant's assertion of rights: see Jones, supra, at § 107—15 and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal (2000), 37 C.H.R.R. D/481, 2000 CanLII 16800 (Ont. C.A.). Damages can be awarded separately for a violation of s. 8: see Ketola v. Value Propane Inc. (No. 1) (2002), 44 C.H.R.R. D/20, 2002 CanLII 46510 (Ont. Bd.Inq.) ("Ketola") and Curling v. Torimiro (No. 4), (2000), 38 C.H.R.R. D/216, 2000 CanLII 20870 (Ont. Bd.Inq.) ("Curling").

163Applying the test of reprisal to the facts of this case, it is evident that the complainant's dismissal constitutes reprisal within the meaning of s. 8 of the Code because I have found that the dismissal was precipitated by the complainant's objection to the poisoned work environment and his expressed intent to complain about sexual harassment. As no respondent ultimately admitted to participating in the termination meeting, I do not have any direct and credible evidence to explain the respondents' reasons for the complainant's dismissal. Based on the proximity between the complainant demanding that something be done about Graham's sexually vexatious behaviour and the complainant's dismissal the very next day, I find that the corporate respondent's decision to terminate the complainant's employment was influenced by the concern that he was complaining about sexual harassment.

164The issue of theft was first raised by the respondents in their pleadings. The pleadings of the corporate respondent state that the complainant "engaged in fraud against his employer" and rely on the alleged theft and fraud as a component of its defence that Menzies Chrysler had a legitimate basis to dismiss the complainant. In his pleadings, Graham (who was separately represented) argued that the complainant pursued his human rights complaint as a pre-emptive tactic to deflect attention from the criminal activity he allegedly perpetrated while at the dealership. In response, the complainant submitted that the respondents reported the complainant's alleged theft to the police as a retaliation for the human rights complaint.

165In Ketola, supra, the Tribunal cautioned a respondent's actions surrounding pursuing a criminal or civil matter must be carefully assessed to ensure that a seemingly bona fide legal claim does not mask retaliatory action. Special attention must be paid to the content of the actual claim, timing of the commencement of the claim, verbal or other indications from the respondent and the reaction of the complainant: see also Curling, supra. The Tribunal in Ketola held that the respondents' contact with the police and threat of criminal prosecution subsequent to receiving the complainant's human rights complaint constituted reprisal. Similarly, in Farias v. Chuang (No. 2), 2005 HRTO 22 [ CHRR Doc. 05-366], the Tribunal concluded that the respondent's action of engaging the police in a complaint about the complainant under the pretext of trying to obtain a key belonging to the respondent was reprisal pursuant to s. 8 of the Code.

166Based on the foregoing, I conclude that the theft report to the police constitutes a form of reprisal. I have found that the corporate respondent, through either Clark Menzies or Lyons, reported the Sebring stolen to the police in June 2007 shortly after the respondents advised the Commission that they refused to participate in the Commission's fact-finding process. I find that the respondents' decision to report the Sebring stolen shortly after contact with the Commission was strategically calculated to cause the complainant embarrassment, attack his character and credibility, and undermine his human rights complaint.

167The content of the cell phone voice message was also clearly vindictive and intended to induce the termination of the complainant's employment. There can be no doubt that the message was retaliatory. However, I am unable to make a finding as to the identity of the anonymous caller and, although I believe that the anonymous caller was likely connected to Menzies Chrysler, this is not a sufficient basis to find that one of the respondents reprised against the complainant by leaving the cell phone message.

168Consequently, I find that the corporate respondent and the personal respondent managers, namely Clark Menzies and Lyons, reprised against the complainant with respect to the termination of his employment and that the corporate respondent's theft report to the police also constitutes reprisal contrary to s. 8 of the Code.

REMEDIES

169Having concluded that the respondents violated the complainant's right to be free from discrimination, harassment and reprisal contrary to ss. 5(1), 7(2) and 8 of the Code, I must now determine what remedy, if any, is appropriate. The Tribunal's remedial jurisdiction is set out in s. 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.

170Where it has been found that a complainant was dismissed contrary to the Code, the complainant is generally entitled to compensation for lost wages. The complainant did not claim loss of income for any period of unemployment. Rather, the complainant argued that the poisoned work environment he endured during his third period of employment negatively affected his ability to sell cars. As such, the complainant claims that he is entitled to compensation for approximately $14,500 representing his reduced income during his third period of employment compared to previous periods of employment.

171While I agree that the evidence established that the discrimination and harassment had a negative effect on the complainant's emotional well-being, I find this matter more appropriately comes within the ambit of compensation for injury to dignity, feelings and self-respect. Further, Davey's evidence indicated that a salesperson's capacity to sell cars is subject to a variety of factors, including the general state of the economy. I find that there was insufficient evidence to demonstrate that the reduction of the complainant's third period sales occurred because of the poisoned work environment or that the poisoned work environment was a proximate cause in limiting the complainant's sales success.

Compensation for Injury to Dignity, Feelings and Self-Respect

172A human rights damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane (2008), 91 O.R. (3d) 649, 2008 CanLII 39605 [ 64 C.H.R.R. D/132] (Div.Ct.), recently confirmed that an award to compensate for the "experience of victimization" is predicated upon a number of considerations, including: the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome: see also Ketola, supra, and Baylis-Flannery v. DeWilde (No. 2), 2003 HRTO 28 [reported 48 C.H.R.R. D/197].

173The complainant testified that he felt extremely uncomfortable, humiliated and belittled by Graham's behaviour. He described feelings of revulsion, anger and apprehensiveness when around Graham. He testified that, shortly after he started sharing office space with Graham, he began to experience frequent sleeplessness and emotionally withdrew from his wife. The fact that Lyons and Clark Menzies did not take his concerns seriously made him feel more insecure and isolated at work. His frustration and resentment grew when he was told by Lyons and Menzies that his complaints were reflective of his own negative attitude. His confidence as a salesperson was shaken and he experienced self-doubt, leading him to question whether his own behaviour somehow caused Graham to degrade him.

174Because of these feelings of disgust and shame, the complainant did not discuss the harassment he experienced and his distress with any of his friends or family. He told his wife what had happened at Menzies Chrysler and sought medical help for his anxiety and sleeplessness only after consulting with a lawyer in the fall of 2006. Although he obtained work elsewhere, the complainant harboured feelings of mistrust and upset, which were exacerbated by the anonymous caller incident. He was embarrassed and enraged for a long time after his dismissal and eventually moved out of the province to secure employment in a new line of work. However, he was required to return home to deal with preliminary matters in this hearing and, for over a year, was forced to live under a cloud of suspicion because of the criminal charges. I find that the harassment, poisoned work environment and termination had a serious negative impact on the complainant.

175The respondents asked that I draw an adverse inference from the complainant's failure to call his spouse to corroborate the negative psychological and physical effects the complainant claims he suffered. The Tribunal may draw an adverse inference from the failure of a party to tender relevant evidence; however, the Tribunal is not obliged to do so. The Tribunal must consider the specific circumstances of each case, including such factors as whether or not the evidence was so material to the case that its absence calls for a negative inference, whether the evidence was uniquely available to the party, whether other evidence (oral or documentary) contraindicates the adverse inference and whether the omission has been adequately explained.

176I do not agree that the complainant's failure to call his spouse must lead to an inference that her evidence would not have assisted his case. I do not think the spouse's evidence describing the complainant's state of being would have been so important that the complainant must be criticized for not calling her as a witness. Rather, any evidence offered by the complainant's spouse would likely have been her reflections of his subjective suffering at a time when the complainant admits his spouse was not privy to his experiences. I have heard and accept the complainant's evidence of the emotional impact the poisoned work environment had on him. Further, any such evidence from the complainant's spouse would have been superfluous, given that almost every witness, including the personal respondents, testified that during his employment the complainant was increasingly upset and that his irritability and distress appeared related to Graham.

177The complainant seeks $150,000 for his inherent right to be free from harassment, $150,000 for his right to be free from reprisals and $50,000 for mental anguish flowing from the violation of his rights. Although I find all the above-noted factors (specifically the frequency, intensity, offensiveness, unwanted nature of the conduct and its serious impact on the complainant) support the complainant's request for significant damages to compensate for the injury to his dignity, feelings and self-respect, the quantum sought by the complainant is outside the jurisprudential realm of past awards of damages in cases of similar circumstances.

178In assessing an award for injury to dignity, feelings and self-respect and the inherent right to be free of discrimination and harassment, I will make separate awards of compensation with respect to the sexual harassment and poisoned work environment violations and the reprisal violations of the Code. While I find that the corporate respondent shares joint and severable liability for the poisoned work environment and for failing to address the poisoned work environment, I also hold Graham and Lyons personally liable for the sexual harassment violations of the Code. Although I appreciate that Lyons was a supervisor of the corporate respondent, I do not think this status should insulate him from liability for his own complicity in the harassment. I see no reason why Graham and Lyons should avoid personal liability, given their very direct and intimate role in the sexual harassment: see Drummond v. Tempo Paint & Varnish Co. (No. 4) (1998), 1998 CanLII 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd.Inq.).

179The law is clear that employers are liable for workplace harassment and a poisoned environment on the basis that the employer controls the terms and conditions of the workplace and therefore is in the best position to address the environment: see, Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 [ 8 C.H.R.R. D/4326]. Employers are also liable when harassment is carried out by a supervisor or if the supervisor knew or ought to have known that the workplace harassment was unwelcome, failed to address the complainant's concerns and failed to curtail the misconduct: see Moffatt, supra, and Wall, supra.

180Given the poisoned work environment findings, and by virtue of s. 46.3(1) of the Code, which deems the discriminatory actions of employees carried out in the course of their employment to be the actions of the corporate employer, the corporate respondent shares liability for the poisoned work environment experienced by the complainant and for its failure to address this environment. As such, the corporate respondent is jointly and severally liable for the existence of the poisoned work environment and its failure, as well as that of Lyons and Menzies, to take adequate steps to address the poisoned work environment and respond to the complainant's concerns. Further, the corporate respondent is directly liable for reprising against the complainant by terminating his employment.

181Where two respondents have been found to have infringed a right of the complainant, each respondent can be ordered to pay monetary compensation and where a respondent infringes more than one right, monetary compensation can be ordered in respect of each right; see Moffatt, supra, at § 38. Accordingly, I have apportioned damages as follows:

· Graham is personally liable to pay $8,000 to the complainant for the violation of his inherent right to be free from sexual harassment under s. 7(2) and for the injury to the complainant's dignity, feelings and self-respect flowing from this violation;

· Lyons is personally liable to pay $2,000 to the complainant for the violation of his inherent right to be free from sexual harassment under s. 7(2) and for the injury to the complainant's dignity, feelings and self-respect flowing from this violation;

· All personal respondents and the corporate respondent are jointly and severally liable to pay the complainant $25,000 for the inherent right to be free from a poisoned work environment, for failing to address the poisoned work environment because of sex and sexual orientation under s. 5(1) and for the injury to the complainant's dignity, feelings and self-respect flowing from this violation; and

· The corporate respondent is liable to pay $15,000 to the complainant for the violation of his inherent right to be free from reprisal under s. 8 with respect to his dismissal and for the injury to the complainant's dignity, feelings and self-respect flowing from this violation.

182At the conclusion of the hearing, the complainant submitted that an order should be made against Ajax Jeep Eagle Ltd. as it is a related corporation to the corporate respondent. Given the lateness of the request and the lack of clarity regarding the corporate entities, I decline to make any order against Ajax Jeep Eagle Ltd.

183I have made no award with respect to my finding of reprisal regarding the theft report because counsel for the complainant indicated his concern that the complainant was barred from pursuing a remedy due to the agreement the complainant entered into (when represented by separate criminal counsel) with the Crown, which provided that in return for having the criminal charges dropped, the complainant agreed not to commence any action against, inter alia, Menzies Chrysler and its employees relating to having been criminally charged.

Directions to Promote Future Code Compliance

184The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy ". . . should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances", see Giguere v. Popeye Restaurant, 2008 HRTO 2 [reported 62 C.H.R.R. D/147] at § 91.

185In the circumstances of this case and in order to promote future human rights compliance, it is important for all respondents to secure a better understanding of rights and responsibilities provided by the Code. When the Commission was an active party in this proceeding it sought extensive "public interest remedies", including mandatory training, implementation of a policy, creation of a complaint mechanism and posting of human rights information, all of which the complainant adopted in his pleadings. During the hearing, all personal respondents and representatives of the corporate respondent conceded that Menzies Chrysler did not have a human rights policy and that they had never received human rights training. As such, I find it appropriate to require the corporate respondent to develop a human rights policy and complaints procedure and for all respondents, as well as the employees of the corporate respondent, to receive human rights training.

Interest

186An order of prejudgment and postjudgment interest on all monetary amounts awarded herein is appropriate. I award prejudgment interest pursuant to s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, from September 30, 2006, that being the date the complainant was dismissed. Postjudgment interest is payable pursuant to s. 129 of the Courts of Justice Act from the date of this decision.

ORDER

187In conclusion, the Tribunal orders that:

· Within 30 days of this decision, Graham is personally liable to pay $8,000 to the complainant for the violation of his inherent right to be free from sexual harassment under s. 7(2) and for the injury to his dignity, feelings and self-respect flowing from this violation;

· Within 30 days of this decision, Lyons is personally liable to pay $2,000 to the complainant for the violation of his inherent right to be free from sexual harassment under s. 7(2) and for the injury to his dignity, feelings and self-respect flowing from this violation;

· Within 30 days of this decision, all personal respondents and the corporate respondent are jointly and severally liable to pay the complainant $25,000 for the inherent right to be free from a poisoned work environment and for failing to address the poisoned work environment because of sex and sexual orientation under s. 5(1) and for the injury to his dignity, feelings and self-respect flowing from this violation; and

· Within 30 days of this decision, the corporate respondent is liable to pay $15,000 to the complainant for the violation of his inherent right to be free from reprisal under s. 8 with respect to his dismissal and for the injury to his dignity, feelings and self-respect flowing from this violation.

· Prejudgment and postjudgment interest is to be paid on each of the amounts ordered above, at the applicable average annual rate set in the Courts of Justice Act.

· Within three months of this order, the corporate respondent is required to retain, at its own expense, a human rights consultant to create and establish a comprehensive anti-discrimination/harassment policy and internal complaint mechanism. A copy of this decision is to be provided to the consultant in advance of the preparation of the policy;

· Within five months of this order, the corporate respondent is required to disseminate the anti-discrimination/harassment policy and internal complaint procedures to all members of management, supervisors and employees and is further required to post the policy and procedures in a plain and obvious location at its premises so that the postings are accessible to all persons doing work for the corporate respondent;

· Within six months of this order, the corporate respondent is required to provide training with respect to the anti-discrimination/harassment policy and internal complaint procedures to all members of management, supervisors and employees; and

· Within six months of this order, any personal respondents who are no longer employed by the corporate respondent are required, at their own expense, to attend a human rights training program facilitated by an expert in human rights.