Haykin v. Roth, 2009 HRTO 2017

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Haykin

Applicant

-and-

Marty Roth

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: December 3, 2009

Citation: 2009 HRTO 2017

Indexed as: Haykin v. Roth

1This case is about allegations that the respondent, a real estate salesperson, made inappropriate comments of a sexual nature to the applicant, his client. The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in services on the basis of sex and sexual harassment.

2In addition to allegations of sexual harassment and discrimination on the basis of sex, the Application contains a large number of allegations that the real estate services provided by the respondent were inadequate.

3At the outset of the hearing, the parties agreed that the only issue before the Tribunal is whether or not the comments made by the respondent constitute a breach of the Code. The Tribunal’s role is not to determine the adequacy of the real estate services.

4An oral hearing was held on November 4, 2009. For the reasons that follow, I find that the respondent breached the applicant’s rights under the Code.

THE FACTS

The context in which the comments were made

5In 2008, the applicant engaged the respondent to assist her with the sale of her condominium on Y street and the purchase of a new unit on M street. The comments that form the subject-matter of the Application were made in the context of this approximately two-month long professional relationship.

6The applicant elected to purchase a new home on M street before selling her existing property on Y street. Given her understanding that she was operating in a seller’s market, the applicant felt it would be best to find and purchase a new home before attempting to sell her existing home. Unfortunately, once she had purchased the new home, she encountered difficulty selling the Y street property for what she felt was a reasonable price. As a result, she found herself owning two properties and facing stressful financing issues.

7The applicant holds the respondent responsible for her difficulties with the sale of the Y street property. She is dissatisfied with the real estate services provided to her by the respondent and, in particular, she feels that she was not provided appropriate guidance regarding the risk of purchasing a new unit before selling her existing home. She is also concerned that, among other things, the respondent did not provide appropriate advice regarding a purchase offer she received on her Y street home and that he entered her home when she says he did not have permission to do so.

8The respondent felt that, in filing an application with the Tribunal, the applicant was motivated principally by her dissatisfaction with the real estate services he provided. He suggested that the harassment issue is a secondary one. The respondent argued, and the applicant conceded that, but for the real estate difficulties and the fact that the applicant was unsuccessful in obtaining remedies in other venues, she would not likely have filed an application under the Code based on the respondent’s comments.

The comments

9The applicant states that in the course of conversations she had with the respondent, he used sexually inappropriate language, which she found offensive and demeaning. She argues that this constitutes harassment and discrimination under the Code.

10Three exchanges between the parties are relevant to these allegations. In chronological order, they are:

a. First, on one occasion the applicant expressed her frustration with the real estate dealings by saying to the respondent, “I feel screwed over”. The respondent argues that this comment set the tone for the later exchanges between the parties. He argues that it is disingenuous for the applicant, who initiated the use of vulgarities, to complain of the language later used by the respondent. The applicant readily acknowledges that she used this expression and that it is a vulgarity. However, she states that her use of this language cannot be taken as an invitation for the respondent, her real estate agent, to engage her in increasingly vulgar exchanges. The applicant spoke of degrees of vulgarity and states that while her comment was vulgar, it was not as offensive as the comments she says were later made to her by the respondent.

b. Second, in a subsequent conversation in which the respondent was empathising with the applicant’s situation, the respondent said to the applicant: you feel “fucked.” The respondent did not dispute that he used this expression, although he denies that it constitutes sexual harassment or discrimination.

c. A third conversation took place in which the parties were discussing a possible reduction in the offer price of the applicant’s Y street unit. The respondent stated that he did not show clients property that was outside their price range. To illustrate this statement, the applicant says that the respondent made comments to the effect of, “I wouldn’t show you a property outside your price range because I wouldn’t want you to get all hot and wet about something you can’t afford.” The respondent denies making this comment, stating that the expression “hot and wet” is not part of his vocabulary. In the Response filed with the Tribunal, the respondent indicated that he may have used the expression “excited” (as in getting excited about a property), but that he never intended for it to have a sexual connotation. During his testimony before the Tribunal, however, the respondent stated that he might have used the words “hot and bothered”.

11The third conversation is the essential point of contention in the case. The applicant conceded that she would not have filed the Application but for the third exchange.

12The applicant pointed out that the respondent provided the “hot and bothered” explanation for the first time during his testimony before the Tribunal. Although it was open to him to offer this expression as an explanation much earlier, in his Response or in the materials he filed with the Real Estate Council of Ontario (“RECO”) , he did not do so.

13While he denies using the expression “hot and wet”, the respondent argues that regardless what was said (whether “hot and wet” or “hot and bothered”), his comments were not directed at the applicant. In other words, he says he made a broad statement that he would not show a property above price range to “anyone” so as not to get “anyone” hot and bothered. The respondent states that “hot and bothered” is common parlance and not offensive or harassing language. He further argues that a general statement, not directed at the applicant, does not constitute sexual harassment or discrimination under the Code.

14The applicant disputes this and states that the comment was a very personal one, directed specifically at her. She says the exchange referred to her directly, along the lines of: “I wouldn’t show you a property you can’t afford so that you don’t get hot and wet about something you can’t purchase.”

The complaint filed with RECO

15The applicant filed complaints with the Real Estate Council of Ontario (“RECO”) and, subsequently, with the Tribunal. The documents she filed in support of both proceedings are identical. In them, the applicant alleges two things:

• that the respondent made inappropriate comments of a sexual nature to her; and
• that the real estate services provided to her were inadequate.

16As I indicated earlier, the sole issue for the Tribunal to determine is whether respondent’s comments constitute a violation of the Code.

17I understand RECO to be a regulatory body for real estate brokers. It administers the Real Estate and Business Brokers Act, S.O. 2002, c. 30, as amended (REBBA) and its associated regulations. These regulations include a Code of Ethics (Regulation 580/05), which proscribes certain activities, including harassment.

18The relevant provisions of the Code of Ethics are:

39. A registrant shall not, in the course of trading in real estate, engage in any act or omission that, having regard to all of the circumstances, would reasonably be regarded as disgraceful, dishonourable, unprofessional or unbecoming a registrant.

40. A registrant shall not abuse or harass any person in the course of trading in real estate.

19REBBA creates an office of the Registrar to receive complaints and take a number of actions in response. Section 3 of REBBA describes the Registrar’s powers as follows:

The registrar shall exercise the powers and perform the duties imposed on him or her under this Act under the supervision of the director

20Section 19 of REBBA sets out the complaints procedure as follows:

19(1) If the registrar receives a complaint about a registrant, the registrar may request information in relation to the complaint from any registrant.

(2) A request for information under subsection (1) shall indicate the nature of the complaint.

(3) A registrant who receives a written request for information shall provide the information as soon as practicable.

(4) In handling complaints, the registrar may do any of the following, as appropriate:

1. Attempt to mediate or resolve the complaint.

2. Give the registrant a written warning that if the registrant continues with the activity that led to the complaint, action may be taken against the registrant.

3. Require the broker or salesperson to take further educational courses.

4. Refer the matter, in whole or in part, to the discipline committee.

5. Take an action under section 13 (refusal to register), subject to section 14 (suspension).

6. Take further action as is appropriate in accordance with this Act.

21In the applicant’s case, she filed a written complaint with RECO, which appears to function as the Registrar for the purposes of REBBA. The respondent provided a written response and RECO then requested additional information from him.

22RECO rendered a decision based on the written materials before it. It dismissed the applicant’s complaint in its entirety without referring it to a discipline committee, concluding that there was no basis for a finding against the respondent. RECO’s decision does not refer to the harassment element of the applicant’s complaint.

23At the hearing, the respondent argued that the subject matter of the Application had been appropriately dealt with by RECO and that the Application should be dismissed pursuant to s. 45.1 of the Code on this basis.

THE ISSUES

24The Application raises the following issues:

a. Has the subject matter of the Application been appropriately dealt with in another proceeding such that it should be dismissed under s. 45.1 of the Code?

b. What comments did the respondent make to the applicant?

c. Do these comments constitute discrimination or sexual harassment pursuant to the Code?

d. In the event there has been a breach of the Code, what is the appropriate remedy?

ANALYSIS

Should the Application be dismissed pursuant to s. 45.1 of the Code?

25Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

26Tribunal jurisprudence has considered the issues under section 45.1 as two distinct questions: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application.

Is the RECO complaint a “proceeding” for the purposes of the Code?

27In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal held that, at the very least, a “proceeding” includes an adjudicative process established under a statutory regime.

28In my view, REBBA clearly establishes an adjudicative process under a statutory regime. I find that the applicant’s complaint to RECO has been addressed in a proceeding for the purposes of the Code.

Was the substance of the Application appropriately dealt with?

29The application of section 45.1 of the Code has been considered by the Tribunal, notably in Campbell, supra, and Noble v. York University, 2009 HRTO 1201.

30It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

31The parties agree that the issue of sexual harassment was raised in the complaint before RECO. The issues I must consider are whether RECO had the jurisdiction to interpret and apply the Code and whether it offered the applicant a full and fair opportunity to have the human rights claim addressed.

32The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the subject matter of the Application.

33In this case, RECO’s decision is brief and entirely silent as to the harassment element of the applicant’s complaint. Without deciding whether reasons must always be provided in order for section 45.1 to apply, in the circumstances, I am cannot satisfy myself that RECO considered the human rights element of the applicant’s complaint. I cannot conclude that the human rights component of the applicant’s complaint was appropriately dealt with by RECO.

34It may be that RECO considered these allegations and dismissed them. However, the fact that the reasons are silent as to this aspect of the complaint, means that it is also possible that RECO did not lend its mind to these allegations. In the circumstances, the respondent has not established on a balance of probability that RECO appropriately dealt with the substance of the Application and I am not prepared to dismiss the matter pursuant to section 45.1.

What comments did the respondent make to the applicant?

35This question turns primarily on my assessment of the credibility of the applicant and the respondent, the only two individuals to testify at the hearing. In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken…

36I found the applicant to be forthright in her testimony. In this regard, she made a number of declarations that were arguably against her own interest. She readily acknowledged that has used the term “screwed over”. She also acknowledged that she would not likely have filed an application with the Tribunal had she received a remedy in another forum.

37The respondent’s credibility is not enhanced by the explanation he provided at the hearing of this matter. He explained that he did not say “hot and wet” but that he might have said “hot and bothered.” He provided this explanation for the first time when he gave evidence before the Tribunal. He provided a different explanation (use of the word “excited”) in the Response and he does not appear to have provided the “hot and bothered” explanation in the materials filed with RECO.

38Where there was a conflict between the respondent’s and the applicant’s versions of the fact, I prefer the evidence of the applicant. I find, on a balance of probabilities, that the respondent used the expression “hot and wet” when speaking to the applicant. I also find that the comment was directed at the applicant and I reject the respondent’s argument that it was a used generically and referring to “anyone”.

In the circumstances, do the respondent’s comments constitute discrimination or harassment pursuant to the Code?

39The relevant provisions of the Code are:

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

7(1) Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

40The respondent argues that the Code does not prohibit sexual harassment in the context of the provision of services. He states that section 7 and more specifically subsection 7(3) of the Code do not apply to the relationship between a real estate agent and a client. He states that the matter involves neither a workplace nor accommodation and that this it is not a case of sexual solicitation, since a real estate agent is not in a position to “confer, grant or deny a benefit or advancement” to a client.

41While it may be that sexual harassment in services is not specifically contemplated in section 7, I disagree that it falls outside the ambit the Code. In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 the Supreme Court of Canada concluded that sexual harassment is a form of discrimination on the basis of gender.

42The Court cited arbitrator Shime in Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 who, commenting on the meaning of workplace sexual harassment under the Code, wrote:

The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment....

43Based on the Supreme Court of Canada’s reasoning in Janzen, supra, it is clear that, even in the absence of a specific prohibition at section 7, sexual harassment is prohibited as a form of sex discrimination under section 1 of the Code.

44Given that the definition of harassment under the Code refers to a “course of vexatious conduct or comment”, the respondent argues that a single comment does not meets the definition of harassment in the Code or otherwise constitute a breach of section 1 of the Code.

45I disagree. The Tribunal has recognized that, in appropriate circumstances, a single incident, can meet the definition of harassment. See, for example, Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9.

46Repeated conduct is not essential to a finding that the Code has been violated. For example, in Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155, referred to by the Supreme Court in Janzen, Adjudicator Shime acknowledged that frequency of conduct is not a condition for an adverse finding under the Code. He stated:

However, persistent and frequent conduct is not a condition for an adverse finding under the Code because a single incident of an employee being denied equality of employment because of sex is also prohibited activity. (emphasis added)

47I adopt the Tribunal’s reasoning in Romano v. 1577118 Ontario Inc., 2008 HRTO 9 and find that, while not necessarily meeting the formal definition of a “course of vexatious comment or conduct” under section 7 or section 10, a single remark may be sufficient to constitute a form of discrimination within the meaning of section 1.

48Finally, the respondent argues that Tribunal is not the vulgarity police and that the mere use of vulgarity does not trigger a right under the Code. I agree. I find that the parties’ uses of the expressions “screwed over” and “fucked” are an exchange of vulgar terms, which does not give rise to discrimination within the meaning of the Code.

49The respondent’s use of the words “hot and wet” raises a more difficult issue. Arguably, this single comment is not as serious as comments that have given rise to findings of discrimination in the past. Further, as the respondent notes, the parties had established a relationship in which they had exchanged vulgarities. As I have indicated, I strongly agree that the Tribunal’s role is not to monitor parties’ use of vulgarity and, were I satisfied that the exchanges involved only a generic use of vulgar terms by one or either of the parties, I would have no hesitation in dismissing the Application.

50Given my finding that the comment “hot and wet” was in direct reference to the applicant, I think that exchange went beyond the mere use of a vulgarity. The comment is also of a sexual nature and I find that, in the context in which it was used, it had the effect of demeaning and objectifying the applicant and affronting her dignity.

51The respondent knew or ought to have known this comment was unwelcome and wrong. The comment constitutes gender discrimination within the meaning of sections 1 of the Code.

Compensation

52In Sanford v. Koop, 2005 HRTO 53 at para. 35, the Tribunal summarized the factors to be used in assessing the appropriate quantum of damages. They are:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant’s loss of self-respect
• A complainant’s loss of dignity
• A complainant’s loss of self-esteem
• A complainant’s loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

53The breach in question was a single remark and this militates toward a lower award. The remark itself was vulgar and I accept that it was demeaning and humiliating to the applicant. In Romano v. 1577118 Ontario Inc., 2008 HRTO 9, the Tribunal ordered general damages in the amount of $1,000.00 for a breach also involving a single comment. In that case, however, the remark was more vulgar and serious. In my view, monetary compensation in the amount of $300.00 is appropriate in the circumstances of this case.