Bahen v. Catering 101, 2009 HRTO 2271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolyn Bahen

Applicant

-and-

Catering 101 and Kevin Knicely

Respondents

DECISION

Adjudicator: Brian Eyolfson

Date: December 29, 2009

Citation: 2009 HRTO 2271

Indexed as: Bahen v. Catering 101

APPEARANCES BY

Carolyn Bahen, Applicant ) On her own behalf

Catering 101 and Kevin Knicely, Respondents ) No one appearing

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 8, 2008, alleging discrimination on the basis of sex, sexual harassment, and sexual solicitation or advances in employment.

2The respondents have not participated in the proceedings. In three Interim Decisions, the Tribunal addressed the issue of the respondents’ failure to file a Response in accordance with the Tribunal’s Rules of Procedure and outlined the consequences of that failure in light of Rule 5.5 of the Tribunal’s Rules: 2008 HRTO 346, 2009 HRTO 223, and 2009 HRTO 829. In the third Interim Decision, the Tribunal indicated that it would proceed without the participation of the respondents and deemed the respondents to have accepted all of the facts alleged in the Application and to have waived any right to participate in the proceedings.

3The applicant was provided with an opportunity to file any additional documents or materials with the Tribunal and an in-person hearing was held at which the applicant gave evidence and made submissions.

FACTS

4In her Application, the applicant alleges that on December 12 or 15, 2007 she was sexually harassed and verbally abused by the individual respondent, Kevin Knicely, owner and manager of the organizational respondent. She alleges that she was with another server at the individual respondent’s loft where he conducts business and prepares food for events. She alleges that the individual respondent said to her that she was not working because she was “not putting out”. She testified that she found the comment to be very sexual. She also alleges that several times he asked her and the other server to join him in the shower. She alleges that the individual respondent was intoxicated at the time and that he commented about the size of her breasts.

5At the hearing, the applicant explained that the individual respondent asked her, the other server, and both of them together, to join him in the shower while they were busy preparing food. He also offered them drinks. They ignored him and carried on working. With respect to the comment about the size of her breasts she testified that he stated to the effect, “use your big breasts tonight”.

6The applicant also alleges that later that day, at the event location, the individual respondent yelled at her in front of all the servers and that he only treated her in this way. At one point she told him that the grills were dirty and he yelled at her again. She told him that she was leaving due to his verbal abuse. She did not work for the respondents again. She testified that she told the individual respondent not to call her.

ANALYSIS AND DECISION

7The relevant provisions of the Code provide as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex.

6. (2) Every person who is an employee had 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.

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

(a) a sexual solicitation or advance made by a person in a position to confer, 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

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

10. (1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.

8The respondents have already been deemed to have accepted all of the allegations set out in the Application: 2009 HRTO 829. In addition, I have no reason to doubt the uncontradicted evidence of the applicant concerning inappropriate comments made by the individual respondent on the afternoon of December 12 or 15, 2007. I find that the following inappropriate comments were made and constitute a course of vexatious comment, contrary to sections 5(1), 7(2) and 9 of the Code: the comment that the applicant was “not putting out”; the invitations to join the individual respondent in the shower; and the comment about the applicant’s breasts. I find that the individual respondent knew or ought reasonably to have known that such comments were unwelcome.

9I also find that the individual respondent’s invitations to the applicant to join him in the shower constitute sexual solicitations or advances. The individual respondent, as the owner and manager of the organizational respondent, was clearly in a position to confer, grant or deny a benefit or advancement to the applicant who was an employee. Accordingly, I find that the individual respondent also violated sections 7(3)(a) and 9 of the Code.

10I also find that the respondents are jointly and severally liable for the above violations of the Code, considering that the individual respondent, Kevin Knicely, is clearly a “directing mind” of Catering 101.

11With respect to the cessation of the applicant’s employment with the respondents, the applicant indicated that she left her employment with the respondents due to the individual respondent’s verbal abuse at the event location. There was no indication, however, in either the Application or the applicant’s evidence that the verbal abuse at the event location was in any way related to a Code ground. In addition, there was no indication that the inappropriate comments of a sexual nature made earlier in the day were a factor in the applicant’s decision to leave her employment later that evening. In the circumstances, I find that there is insufficient evidence to establish that the applicant’s decision to leave her employment with the respondents engages a Code ground.

REMEDY

Lost wages and expenses

13The applicant seeks $420.00 in lost wages in respect of three more catering events that she believes she would have worked. She commenced employment in a different field of work in January 2008. She also seeks $25.00 in respect of cab fare expenses to get home from the event location on the last day she worked for the respondents.

14In light of my finding that there is insufficient evidence to establish that the applicant’s decision to leave her employment with the respondents engages a Code ground, an award for compensation in respect of lost wages and cab fare expenses would not be appropriate in the circumstances.

Monetary Compensation for Injury to Dignity, Feelings and Self-Respect

15Although the applicant did not specifically request an award for injury to dignity, feelings and self-respect, in the circumstances, I find that such an award is appropriate.

16Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified relevant criteria to be used in assessing the appropriate quantum of damages to compensate for the infringement of rights enumerated in the Code (see Sanford v. Koop, 2005 HRTO 53). The Tribunal has found the criteria developed in previous cases to be helpful in determining the appropriate damages for injury to dignity, feelings and self-respect (see S.H. v. M[…] Painting, 2009 HRTO 595; Hughes v. 1308581 Ontario, 2009 HRTO 341). The Ontario Divisional Court, in ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.

17The applicant alleged that she was embarrassed by the individual respondent’s comments earlier in the day. She described his comments as rude and stated that she did not appreciate being spoken to that way. She testified that she found his repeated invitations to join him in the shower to be “silly”. In all of the circumstances, I find that an award of $2,000.00 is appropriate as compensation for the impact of the individual respondent’s inappropriate comments of a sexual nature, including the invitations to join him in the shower, on the applicant’s dignity, feelings and self-respect.

Apology

18The applicant clarified at the hearing that she also seeks a written apology. Historically, the jurisprudence of the Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns; see summary of caselaw in Turnbull v. Famous Players (2001), 2001 CanLII 26228 (ON HRT), 40 C.H.R.R. 333 at para. 264; see also Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at para. 110. I agree with the concerns identified in the Tribunal’s jurisprudence. In light of the Order below that the respondents are jointly and severally liable to pay the applicant compensation for loss arising out of the infringement of her rights, and in the absence of any submissions on the appropriateness of ordering an apology in the circumstances, I decline to order that an apology be given.

ORDER

19Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Order, the respondents are jointly and severally liable to pay the applicant the following amount:

a. $2,000.00 in respect of compensation for loss arising out of the infringement of her rights, including injury to dignity, feelings and self-respect;

b. Pre-judgment interest on the award of $2,000.00 from December 15, 2007, to the date of this Decision, in accordance with the Courts of Justice Act.

c. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.