Hughes v. 1308581 Ontario Inc.
HR-1182-06
2009-03-20
2009 HRTO 341
Human Rights Tribunal of Ontario
CHRR Doc. 09-0489
Debra Hughes
Complainant
and
Ontario Human Rights Commission
Commission
v.
1308581 Ontario Inc. o/a The Best Dollar Store / The West Dollar Store and Tanvir Hussein
Respondents
Before: Human Rights Tribunal of Ontario, Kathleen Martin
Appearances by:
Sheena Scott, Counsel for the Commission
Michael Klug, Counsel for the Complainant
Hamid Durrani, Counsel for the Respondent
SEXUAL HARASSMENT — sexual advances and sexual assault by employer — DAMAGES — damages assessed for sexual harassment — injury to dignity and self-respect — special damages — wages — PROCEDURE — adjudicating issue dealt with in prior proceeding as abuse of process — test for abuse of process — EVIDENCE — transcript of criminal proceeding — criminal conviction — credibility
Summary: The Human Rights Tribunal of Ontario ruled that Debra Hughes was sexually harassed by Tanvir Hussein, the owner and manager of The Best Dollar Store.
Ms. Hughes worked as a clerk in The Best Dollar Store from October 8, 2003, until December 9, 2003. Shortly after she left her employment she filed a human rights complaint alleging that she was subjected to sexual harassment, sexual solicitation, and reprisals by Tanvir Hussein.
In December 2003, the Ontario Provincial Police laid several charges against Mr. Hussein arising from the same circumstances, and in August 2005, he plead guilty and was found guilty of criminal harassment of Ms. Hughes.
The Tribunal accepted some specific facts that were the basis for the finding of criminal harassment. The Tribunal agreed with Ms. Hughes that the respondents should be precluded from re-litigating these facts on the grounds that it would be an abuse of process to permit Mr. Hussein to challenge facts that he had admitted in the Ontario Court of Justice, and which that Court accepted.
The Tribunal accepted Ms. Hughes testimony that on a number of occasions over her two months of employment, Mr. Hussein touched Ms. Hughes, slapped her buttocks, put his hands inside her sweater and touched her breasts. She made it clear that she did not want to be touched by him, but his conduct continued. He went to her house on several occasions, and he frightened her because of his unannounced visits. Ms. Hughes left her employment on December 9, 2003, because Mr. Hussein's conduct was intolerable.
The Tribunal found that Ms. Hughes was subjected to sexual harassment and sexual solicitation. However, it found that there was no reprisal because she filed a human rights complaint.
The Tribunal awarded Ms. Hughes $25,000 as compensation for the infringement of her rights. It also awarded her $1,166.73 as compensation for lost wages.
CASES CITED
Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A): 22
Grzesiak v. DOT Benefits Corp. (No. 1) (2008), 65 C.H.R.R. D/65, 2008 HRTO 206: 83
Kenora Assn. for Community Living (2005), 2005 CanLII 94109 (ON LA), 141 L.A.C. (4th) 160: 9, 15
Ketola v. Value Propane Inc. (No. 2) (2002), 2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37, [2002] O.H.R.B.I.D. No. 14 (QL): 83
Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 83
Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.): 87
St. Michael's Hospital (Re) (2006), 2006 CanLII 93292 (ON LA), 152 L.A.C. (4th) 24: 9, 15
Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63: 9, 13
Wall v. Lippé Group (2008), 64 C.H.R.R. D/26, 2008 HRTO 50: 83
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 6, 73
s. 5(1): 72
s. 7(2) : 6, 72
s. 7(3): 72
s. 7(3)(a): 6, 74
s. 7(3)(b): 6, 76
s. 9: 72
s. 10(1): 72
s. 45.2: 82, 87, 100
INTRODUCTION
1The complainant, Debra Hughes, was employed at the corporate respondent Best Dollar Store from October 8, 2003, to December 9, 2003. Shortly after she left her employment, the complainant filed a human rights complaint alleging that she was subjected to sexual harassment, sexual solicitation and advances and reprisal for refusing sexual advances by Tanvir Hussein, the owner of the corporate respondent and the personal respondent in this matter. The allegations in the complaint related to the personal respondent's conduct at the workplace and in respect of various phone calls and visits to the complainant's home.
2On December 19, 2003, the Ontario Provincial Police laid several charges against the personal respondent arising from many of the same circumstances underlying the human rights complaint. On August 31, 2005, the personal respondent pled guilty to a charge of criminal harassment, related to various telephone calls and visits to the complainant's home; the remaining charges were withdrawn.
3At the commencement of the hearing, the Commission and complainant took the position that, given the guilty plea, the Court's subsequent acceptance of certain facts underlying that plea and finding of criminal harassment, the respondents should be precluded from relitigating the same facts in this proceeding on the basis that to permit otherwise would be an abuse of process. After reviewing the criminal transcript, the allegations in the complaint and the parties' submissions on the issue, I ruled orally that I accepted the facts as established in the criminal proceeding as well as the finding of criminal harassment, although what would flow from these findings would be subject to argument.
4In the subsequent hearing on the merits, I heard the complainant's evidence about the frequency of telephone calls and visits to her home which the Court accepted was disputed. I also heard evidence about additional allegations occurring both at and outside of the workplace.
5During the hearing, notwithstanding my acceptance of the factual findings in the criminal proceeding, Mr. Hussein attempted to challenge the same. In addition, Mr. Hussein denied the additional allegations.
6This case turns on credibility and on the legal effect of the Court's factual findings in the criminal harassment proceeding on the issues in dispute. The issues before me are:
a. Was Ms. Hughes subjected to sexual harassment in the workplace contrary to ss. 5 and 7(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code")?
b. Was Ms. Hughes subjected to sexual solicitation or advance contrary to s. 7(3)(a) of the Code;
c. Was Ms. Hughes subjected to reprisal contrary to s. 7(3)(b) of the Code?
d. If so, what is the appropriate remedy?
PRELIMINARY ISSUES
7At the outset of the hearing into the merits on June 8, 2007, the parties agreed that the names of the personal respondent and the complainant were incorrect and requested that their names as well as the style of cause be amended. As a result, I ordered that the name of the complainant and personal respondent be amended and the style of cause be amended consistent with the corrected names.
8During the course of the hearing, I issued a number of interim rulings and decisions. Two warrant mention, given their impact on the subsequent scope of the hearing: the ruling addressing the impact of the guilty plea in the criminal case on this proceeding; and the ruling excluding the proposed evidence of two witnesses for the respondents.
INTERIM DECISION ON GUILTY PLEA
9As indicated earlier, the Commission and complainant argued that the respondents should be precluded from leading evidence or making argument in this proceeding which was inconsistent with Mr. Hussein's guilty plea. In support of this request, the Commission and complainant produced a certified transcript of the Court proceeding. The Commission and complainant argued that all of the facts read into the Court proceeding and accepted by the Court should be encompassed in the restriction on re-litigation. In support of their position, the Commission and complainant relied on the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 ("CUPE"), as well as several decisions from arbitrators where the Supreme Court of Canada's decision had been applied in the context of a guilty plea (St. Michael's Hospital (2006), 2006 CanLII 93292 (ON LA), 152 L.A.C. (4th) 24 (R.L. Kennedy) and Kenora Association for Community Living (2005), 2005 CanLII 94109 (ON LA), 141 L.A.C. (4th) 160 (I. Springate)).
10Prior to the transcript being produced, the respondents opposed the motion on the basis that it would be unfair to prevent Mr. Hussein from defending that part of the complaint that resulted in his guilty plea on the basis of natural justice. However, after the transcript was produced, on the first day of hearing, the respondents stated that they did not dispute the accuracy of the transcript and the plea and elected to make no further submissions.
11On June 19, 2007, I ruled orally that the doctrine of abuse of process as set out in the decision of the Supreme Court of Canada in CUPE applied in the hearing of this complaint so as to preclude the respondents from relitigating the Court's finding that Mr. Hussein was guilty of criminal harassment and the facts underlying that finding made on August 31, 2005. The facts which I accepted were as follows:
Mr. Hussein employed Ms. Hughes in the fall/early winter of 2003.
Mr. Hussein managed the Best Dollar Store.
Ms. Hughes was employed by Mr. Hussein between October 8, 2003 and December 8, 2003.
Mr. Hussein slapped Ms. Hughes' buttocks after she had complained that it was unwanted contact.
Between October 8, 2003, and December 8, 2003, Mr. Hussein called Ms. Hughes at her place of residence and at a relative's home to question her about what she was doing. This activity occurred after or outside of work hours.
Mr. Hussein attended at Ms. Hughes' residence uninvited to ascertain her whereabouts.
On one occasion, Mr. Hussein entered the home of Ms. Hughes without invitation. On this occasion, Ms. Hughes felt a slap on her buttocks. When asked why he was there, Mr. Hussein advised that he simply entered the premises because there was no answer at the door and the door was unlocked.
The contact was unwanted by the complainant. She advised him as much.
The contact resulted in Ms. Hughes refraining on occasion from answering the telephone because she was afraid that Mr. Hussein would be on the other end. In addition, the contact resulted in Ms. Hughes sitting in the dark to watch television because she was concerned and fearful.
Ms. Hughes left the employ of the store some time in December, in proximity to December 8, 2003, weary of the conduct relating to Mr. Hussein and, in addition, under some dispute relative to payment of wages or otherwise.
12In limiting my findings to the above facts, I accepted the qualifications provided by Mr. Hussein's representative in the criminal proceeding and accepted by the Court: namely that the reference to November 9 as the date of the incident referred to in § 7 was not admitted; and the frequency of occasions involved was disputed, which I accepted as pertaining to § 4, 5 and 6 above. Moreover, I stated that what, if anything, flowed from these findings would be subject to argument. As a result of the above findings, I ordered that the respondents were precluded from relitigating the factual findings set out above. My reasons now follow.
13In CUPE, the Supreme Court of Canada applied the doctrine of abuse of process to prevent the relitigation of a criminal conviction for sexual assault in the context of an arbitration dealing with the convicted person's grievance concerning his discharge for the same sexual assault that was the subject matter of the criminal proceeding. In its decision, the Court held that the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of the court and not the interests of the parties. As a result, the Court held at § 45 that whether a conviction ought to be rebutted or taken as conclusive, "courts will turn to the doctrine of abuse of process to ascertain whether relitigation would be detrimental to the adjudicative process". Against the backdrop of these general principles, the Court considered in which circumstances relitigation may be permitted. At § 52 of its decision, the Court stated:
... to . . . It is therefore apparent from the system's point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context... to . . .
14The Court also identified some examples of when fairness would dictate that the original result not be binding. At § 53, the Court stated:
... to . . . There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If for instance, the stakes in the original proceeding were too minor to generate a full or robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51: Franco, supra, at para. 55).
15While CUPE involved a criminal conviction, arbitrators have applied the decision in the context of a guilty plea (St. Michael's Hospital, supra, and Kenora Assn. for Commmunity Living, supra).
16In the particular circumstances of this case and based on the submissions made, I found that it would be an abuse of process to permit the respondents to relitigate the facts underlying Mr. Hussein's guilty plea and the Court's finding of criminal harassment. I find that there is no reason why Mr. Hussein should be allowed to challenge facts which he admitted in the Ontario Court of Justice and which the Court accepted. In the hearing before me, there was no credible reason advanced by the respondents as to why they should now be able to relitigate those findings that related to the integrity of the judicial system. The respondents did not suggest that the criminal proceeding was tainted in any way or that there was new evidence available. While the respondents cited natural justice and relied on various sections of the Charter, they did not articulate any particular reason why it would be unfair in the circumstances of this case to not allow Mr. Hussein to relitigate those facts that he already accepted and which the Court accepted. I did not find that the sections of the Charter or the caselaw referred to by the respondents to be applicable to the issue before me of whether relitigation would be an abuse of process. Accordingly, I found that Mr. Hussein was precluded from relitigating the facts underlying his plea as well as the finding of criminal harassment.
17I note that, after I made this ruling and in the course of giving evidence, Mr. Hussein continued to challenge the very facts he accepted as part of his guilty plea. He asserted that he had only agreed to plead guilty because of financial difficulties. Even if this had been raised at the time I was making this ruling, it would not have influenced my determination that CUPE applies. In all the circumstances, it would not by itself persuade me to allow Mr. Hussein to relitigate those facts.
INTERIM DECISION ON PROPOSED WITNESSES OF THE RESPONDENTS
18At the outset of the case, the respondents' representative indicated that he wished to introduce evidence from two witnesses. The Commission and complainant objected to the calling of these witnesses on the basis that their evidence was not relevant.
19Having regard to the submissions of the parties and the material before me, which included will-say statements of each of the proposed witnesses, I was satisfied that the evidence was not relevant to the issues in the complaint. The proposed evidence did not relate to the allegations that I need to determine. Rather, most of the proposed evidence was character evidence indicating that Mr. Hussein would not behave in the way he is alleged to have conducted himself in this complaint. The other aspects of the proposed evidence — the impact of the human rights allegations and criminal finding on Mr. Hussein; and the nature of advice given to Mr. Hussein about the criminal charges — were also not relevant to the issues before me, particularly given my earlier ruling on the impact of the guilty plea.
THE EVIDENCE
20I heard evidence from Ms. Hughes and Mr. Hussein, as well as three other witnesses called by the Commission. Mr. Hussein gave his evidence through a Punjabi-English interpreter, who was also available to help him interpret the proceeding.
21Subject to my interim ruling about the facts already accepted in this proceeding, this decision turns largely upon my assessment of the credibility of the evidence given by Ms. Hughes and Mr. Hussein. The three other witnesses called — Constable Murphy, the police officer who investigated Ms. Hughes' complaint to the police; Terri-Lynn Hughes, a niece of the complainant; and Dr. James Kirk — were not critical to my determination of the allegations since, with the exception of a small portion of the evidence of Ms. Terri-Lynn Hughes, none of them were witnesses to the incidences underlying the allegations.
22In assessing credibility, I have applied the traditional test for credibility set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356—57 (B.C.C.A):
... to . . . Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what... to . . . [the witness] has seen and heard, as well as other factors combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions... to . . . Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken... to . . .
23In assessing the evidence, I have had regard to the oral evidence given by witnesses and the documentary evidence submitted. In assessing Ms. Hughes' evidence, I have given some weight to notes that she wrote in her diary at the time of the events and the videotape of her statement to the police shortly after she left her employment to the extent either addressed incidents dealt with directly in her oral evidence. While the Commission and complainant also relied on some additional summary notes created by Ms. Hughes after she left her employment, I have not given any weight to these notes, given the time that elapsed between the events and the creation of these notes.
24I will now turn to a summary of the evidence. Given that Mr. Hussein did not respond to all of the allegations, I will only summarize his evidence where an alternative account was provided by him.
MS. HUGHES' EMPLOYMENT
25Ms. Hughes and Mr. Hussein testified that Ms. Hughes was employed as a cashier at the Best Dollar Store until December 9, 2003 (hence, the date referenced in § 11 above is amended). She was paid minimum wage.
26Ms. Hughes' duties included operating the cash, stocking shelves and cleaning. Ms. Hughes worked either by herself or with Mr. Hussein. On occasion, Ms. Hughes' niece, Terri-Lynn Hughes, assisted Ms. Hughes on an unpaid basis.
27Ms. Hughes' hours of work were on an as-needed basis. Ms. Hughes testified that on average, her hours were from 20 to 25 hours a week throughout her employment, an estimate not disputed by Mr. Hussein.
THE ALLEGATIONS
Alleged Touching Incidents
28Ms. Hughes testified that, during her employment, Mr. Hussein touched her "maybe 15 to 20 times" mostly on her bottom and one time on her breast. She stated that the incidents often happened in the back stockroom, but sometimes in the front of the store when no one was around. She stated that on two occasions Mr. Hussein slapped her on her bottom while she was in the basement. She further stated that when he slapped her it sometimes hurt and sometimes, he dragged his hand across her bottom which she interpreted to be sexual. She also indicated that Mr. Hussein touched her around the thigh area three to four times. Apart from these general comments, she gave specific evidence of certain of these occasions, which are detailed below.
29Ms. Hughes testified that the first time Mr. Hussein touched her was within a week or two of her start date. At the time, she was going down to the basement to get stock, with Mr. Hussein behind her. He slapped her on the bottom. Ms. Hughes said that she told him not to do that, but he "just kinda laughed".
30Ms. Hughes testified that on another occasion she was bent over a box in the back stockroom. Mr. Hussein came up behind her and put his hands under her sweater and touched the bottom of her breasts. She stated that she turned around and told him not to do that. She also grabbed him by the forearms and pushed at him. In response, Mr. Hussein "moved" her arms. She told him: "don't touch me. I don't want to be touched". She stated that she felt rage and disgust at his actions.
31Ms. Hughes testified that, on another occasion, she was coming out of the back room and Mr. Hussein grabbed and pinched her bottom.
32In response, Mr. Hussein stated that he had never touched Ms. Hughes inappropriately or made any sexual advances. He stated that he could not think of Ms. Hughes in that way and in fact thought of Ms. Hughes as a mother. Mr. Hussein stated that the only time he touched Ms. Hughes was when he needed to get her attention during work — he would touch her on her shoulders because she was hard of hearing. He stated that he had no bad intention in doing that. He stated that as far as he knew he had not done anything to hurt her feelings.
Alleged Verbal Comments
33When asked if Mr. Hussein ever expressed any verbal interest in her sexually, Ms. Hughes stated that he had not, nor had he expressed that he was interested in a relationship with her. However, she went on to say that he did ask her to "go" with him and she did not understand what he meant so she would ask "where" to which he replied "nowhere".
34Ms. Hughes stated that Mr. Hussein asked her why she did not want a boyfriend and offered that if she could not find one, he could find her a boyfriend in his country.
35Mr. Hussein denied asking Ms. Hughes to "go" with him. He stated that she was the one who asked him for rides. In addition, he testified that Ms. Hughes asked him to rent a room from her because it would be convenient for him and would help her and suggested that she would invite him to celebrate Christmas with her.
36In fact, Mr. Hussein stated that Ms. Hughes had told him that she loved him whenever he helped her out such as when he lent her money to rent her apartment. He stated that he took Ms. Hughes' comments to mean that she loved him as a son.
Visit to Ms. Hughes' Home on November 7, 2003
37Ms. Hughes stated that on November 7, 2003, Mr. Hussein showed up at her apartment which she had recently rented. Ms. Hughes stated that she did not know why he was there but assumed he came to make sure that the money she had borrowed from him as an advance on her pay — $250 — was for a new apartment. Ms. Hughes said she invited him in to look at her apartment and after showing him the main floor he started to walk upstairs. Ms. Hughes testified that she followed him up the stairs and when they got to the top, he asked her which bedroom she used. While Ms. Hughes was showing Mr. Hussein the bedroom, she stated that Mr. Hussein "tried" to push her on the bed with his hands. She clarified that she was not sure if his hands made contact with her or she lost her balance and fell on the bed. She stated that she got off the bed and told him to stop it and pushed on his chest. She stated that she did not know if Mr. Hussein was joking because her niece was in the adjacent bedroom.
38Ms. Hughes' niece, Terri-Lynn Hughes, testified that, while she did not hear or see the incident described, she saw her aunt and Mr. Hussein going down the stairs to the main level. Ms. Hughes stated that her aunt appeared upset, her face was red and she told her that Mr. Hussein had pushed her down on the bed.
39Mr. Hussein did not dispute that he had entered Ms. Hughes' home on one occasion where she had invited him in to look at her new apartment, but he denied that anything inappropriate occurred. Mr. Hussein stated that he casually saw the apartment, got the key for the store and then left.
Visit to Ms. Hughes' Home on November 9, 2003
40Ms. Hughes testified that the date of the uninvited visit to her home when Mr. Hussein slapped her (referenced in § 11 above) occurred on November 9, 2003. She stated that, after Mr. Hussein slapped her on the bum, she told him that she did not appreciate his conduct and that he should not just walk in, because she may not want company. She stated that she was frightened and angry. She further stated that Mr. Hussein asked her, "why don't you like me" and that she replied, "not that way".
41Mr. Hussein provided no response to this additional evidence; indeed, it was clear from his evidence that he denied ever entering Ms. Hughes' apartment other than on the one occasion described in § 37 above.
Allegations Occurring after November 9, 2003
42Ms. Hughes testified that, after the incident on November 9, 2003, Mr. Hussein began to pick at her work and that nothing that she did made him happy. She stated that, on one occasion, Mr. Hussein called her "stupid". Further, she stated that the touching continued although no details were provided other than in respect of one incident of attempted touching near the end of her employment.
43Mr. Hussein provided no specific response to the allegations that he picked at Ms. Hughes' work. However, he stated that he worked very hard to train her and found her to be slow in picking up instructions.
Events Leading to Ms. Hughes Leaving Best Dollar Store
44Ms. Hughes gave evidence regarding several incidents in early December occurring at the workplace and at her home.
45Ms. Hughes stated that, on December 4, 2003, she left work before the end of her shift because she was frustrated and upset that she could not do anything right. Mr. Hussein came to her house, uninvited, knocked on her door loudly and then left. She stated that she was home but sitting in the dark because she was frightened that Mr. Hussein would come by. She stated that it was reported to her that, after Mr. Hussein left her house, he went to her brother-in-law's to look for her.
46Ms. Hughes stated that, on her day off on December 8, 2003, she went in to work to use the fax machine. She stated that, while in the store, Mr. Hussein wanted her to go around the counter. She stated that he wanted her to sign a book saying that she had been paid in cash the monies owing to her. She described that he "tried" to grab the inside of her right thigh with his left hand and she slapped his hand away and told him to stop it. She also told Mr. Hussein that she could not pay her bills if she was not paid to which Mr. Hussein remarked that she could always "live with him". At that point, Ms. Hughes stated that she left the store and Mr. Hussein came after her, calling her name as she walked up the street.
47Later in her evidence, Ms. Hughes recounted the discussion about her wages as occurring on her last day of work, December 9, although she did not include reference to the alleged attempt to touch her inner thigh. Ms. Hughes stated that later that evening, Mr. Hussein showed up at her house, knocked very loudly on her door and then her window. She stated that again, she was sitting in her house in the dark with her nephew and did not answer the door. She further stated that it was reported to her that Mr. Hussein went to her brother-in law's house to see if she was there.
48Mr. Hussein did not provide a specific response to the various alleged incidents in December. Mr. Hussein stated that he had no idea as to why Ms. Hughes left her employment. Initially in his evidence, Mr. Hussein stated that it "may" have been on December 9th that they had some discussion regarding the "accounts that we had". However, later in his evidence, he expressed uncertainty of his recollection and stated that he did not recall any discussion about a dispute over wages, although he stated that Ms. Hughes owed him money and there were no wages outstanding.
49As for the specific allegations of visiting her home proximate to the time she left her employment, he admitted that he went to her house on two or three occasions, but was uncertain as to the dates involved. Mr. Hussein stated that any time he went to her house it was always for a work-related purpose such as picking up or dropping off the key or giving her or her granddaughter a drive. He also acknowledged that there were occasions when he knocked on the door and then when she did not answer the door, knocked on the window to see if she was at home and after that checked for her at her brother-in-law's house. He stated that he did this on Ms. Hughes' instructions. Ms. Hughes had told him that given her hearing problem, when she is watching television she may not hear knocking on the door so he should knock on the window and then check for her at [her] brother-in-law's home.
50Mr. Hussein denied ever suggesting that Ms. Hughes could live with him; instead he stated that she offered that he take a room from her because it would be convenient and would help her out.
OTHER EVIDENCE CALLED
51Terri-Lynn Hughes testified that, while she assisted her aunt in the store, Mr. Hussein was sometimes present and on a few occasions invited her to come to his house to make pita bread. In addition, she stated that on another occasion, Mr. Hussein brushed up against her in an aisle in the store which made her uncomfortable and that, on a couple of other occasions, Mr. Hussein drove by her slowly while she was walking in town. While this evidence was received without objection from the respondents, ultimately, I found the evidence to be too vague to be of any probative value.
IMPACT ON MS. HUGHES
52Ms. Hughes stated that her experience with Mr. Hussein made her angry, upset and distrustful of men. Ms. Hughes testified that she is filled with rage and "does not know where to put it". Ms. Hughes stated that she suffers from post-traumatic stress syndrome as a result of sexual abuse suffered as a child and that her experience with Mr. Hussein brought back memories of past abuse. She stated that, while she has suffered flashbacks as a result of her condition, her flashbacks became more often and more intense after she started working at the Best Dollar Store. As well, Ms. Hughes stated that she had difficulty sleeping and sought treatment from her physician who prescribed medication to help her cope.
53Dr. James Kirk, the complainant's family physician, testified about his treatment of Ms. Hughes. While initially the Commission did not seek to qualify Dr. Kirk as an expert, at the end of his testimony, the Commission requested that I find Dr. Kirk to be an expert in family medicine including addressing emotional issues and prescribing medication in connection with the same. Given the timing of the request, I asked the parties to address the issue in their final submissions. No submissions were received and on the basis of the limited testimony given, I have not considered Dr. Kirk's testimony to be that of an expert in the stated area, although I have relied on his testimony to the extent he confirmed Ms. Hughes' contact with him.
54Dr. Kirk confirmed that he counselled Ms. Hughes for symptoms associated with her experience of past abuse and her experience at the Best Dollar Store. He stated that, as a result of past abuse when she was young, Ms. Hughes suffered from panic attacks, feelings of depression and flashbacks of the abuse suffered. Dr. Kirk stated that he saw Ms. Hughes twice during the time she was employed at the store and then on three occasions after she left her employment in connection with her experience at the store. He stated that she reported having more flashbacks as well as anxiety, depression and insomnia because of her experience while employed at the store. As treatment, Dr. Kirk stated that he prescribed medication to help her sleep.
55Dr. Kirk stated that the last time he treated her in connection with the experience that she had at Best Dollar Store was January 20, 2004, although he confirmed that Ms. Hughes had reported recently that she was dreading coming to the Tribunal's hearing.
THE DISSOLUTION OF THE CORPORATE RESPONDENT
56The store closed down in February 2004. The current Corporation Profile Report reflects that Articles of Dissolution were filed December 28, 2006.
Findings of Fact
57In choosing between the divergent accounts of what occurred during Ms. Hughes' employment at the Best Dollar Store, I find Ms. Hughes' account more credible than that of Mr. Hussein.
58Ms. Hughes has been generally consistent in her account of what transpired during her employment at the Best Dollar Store. While the respondents argued that Ms. Hughes' delay in complaining should be taken into account in assessing the veracity of her evidence, I find that Ms. Hughes' explanation for the delay was reasonable insofar as she explained that initially she thought she could handle the situation by her objections and needed her job. In any event, it was apparent that Ms. Hughes was concerned about her treatment before she left her employment since Dr. Kirk testified that as of November 24, 2003, she complained to him about her difficulties at work and expressed the belief that she was being sexually harassed.
59However, while I found Ms. Hughes to be generally consistent in her evidence, there were occasions where Ms. Hughes was confused about dates and gave limited details of certain of the allegations. Where these deficiencies were present, they have affected my assessment of the evidence.
60In comparison, I did not find Mr. Hussein to be credible. Notwithstanding my ruling, during his testimony, Mr. Hussein continued to deny all allegations of harassment and sexual harassment, including those facts that he had previously accepted as part of his guilty plea. His credibility was not assisted by the fact that he agreed to the truth of a number of facts in a court of law and then, before this Tribunal, challenged the truth of the very same facts.
61There were other reasons to prefer the evidence of Ms. Hughes. Mr. Hussein's evidence consisted primarily of stating that he had done nothing wrong and his conscience was clear. To the extent he provided any alternative account about what occurred, there were such sparse details provided that I did not find his explanation to be sufficiently coherent to be convincing. For example, Mr. Hussein claimed that he only went to Ms. Hughes' house when she asked him to, but when asked about specific dates, with the exception of November 7th, he could only speculate on his reason for attending on any given date.
62Having regard to the foregoing considerations, I accept most of Ms. Hughes' account of what occurred during her employment at the Best Dollar Store, with the exception of those instances where there was insufficient evidence supporting her allegations.
63In particular, in addition to my findings in § 11, I find that the following specific touching incidents described by Ms. Hughes occurred:
· Within a week or two of her start date, Mr. Hussein slapped her bottom while she was going downstairs to get stock;
· On another occasion, Mr. Hussein came up behind Ms. Hughes whi[le] she was in the back stockroom and put his hands under her sweater and touched the bottom of her breasts;
· On a further occasion, Mr. Hussein grabbed and pinched Ms. Hughes' bottom when she was coming out of the back room.
64I also find that on November 7, 2003, Mr. Hussein attended at Ms. Hughes' apartment and while being shown her apartment tried to push her on the bed and that in response, Ms. Hughes told him to stop it and pushed on his chest.
65I further find that on one of her days off, Ms. Hughes went into the store to use the fax machine and while going behind the counter, Mr. Hussein "tried" to grab at her inner thigh and she slapped his hand away. However, while I accept that this incident occurred, I find that there is insufficient evidence establishing that this occurred at or proximate to the discussion regarding her wages. Ms. Hughes was confused as to the timing of this incident and her notes and statement to police do not appear to corroborate the two events occurring contemporaneously.
66While Ms. Hughes also gave general evidence that in the course of her employment Mr. Hussein touched her inappropriately "maybe" 15 to 20 times, mostly on her bottom and three to four times on her inner thigh, I do not find that there is sufficient evidence for me to conclude on a balance of probabilities that repetitive touching occurred with this frequency. While I am satisfied that Mr. Hussein touched her inappropriately on more than one occasion, I am not convinced that it happened as often as she alleged. Ms. Hughes was tentative in her description of how often the touching occurred. Further, the absence of contextual details is problematic. For example, I have difficulty accepting Ms. Hughes' evidence that Mr. Hussein touched her three to four times on her inner thigh when the only incident she was able to give specific testimony about was about an attempt to grab her thigh. As well, her notes made at the time of the incidences and her statement to the police do not corroborate touching of this frequency. Given these concerns and Mr. Hussein's denial, I do not find that there is sufficient evidence on which I conclude that touching occurred with the frequency alleged.
67I further find that on December 4, 2003, Mr. Hussein came to Ms. Hughes' home without invitation, knocked on her door loudly and left.
68With respect to the events leading up to her leaving her employment, I accept Ms. Hughes' account that Mr. Hussein owed her money and that she had not been paid for about three weeks. In addition, I accept that Mr. Hussein wanted her to sign that she had been paid in cash and when she refused and left the store, Mr. Hussein called after her and then attended at her house that evening, at which time he knocked loudly on her door and her window and then went to her relative's house to look for her. To the extent that Mr. Hussein's evidence contradicted Ms. Hughes, I did not find it to be credible. Mr. Hussein could only speculate on why he may have gone to Ms. Hughes' home that evening and I did not find his explanation convincing in the circumstances. It does not seem logical that if Mr. Hussein was doing a favour of providing Ms. Hughes a ride that he would go to such lengths to locate her. Rather, the more reasonable inference is that Mr. Hussein knew that Ms. Hughes was upset and he was intent on finding her.
69Further, I find that Ms. Hughes repeatedly through her words and actions made it clear to Mr. Hussein that his physical conduct was unwelcome.
70While there was also evidence led about verbal comments including that Mr. Hussein asked Ms. Hughes to "go" with him and that if Ms. Hughes could not pay her bills she could always live with him, I do not find it necessary to address the evidence given about these and similar remarks in any detail. In the particular circumstances of this case, it was not apparent that Ms. Hughes was bothered by the remarks and in any event, even assuming the alleged comments were made, they would not affect the level of damages that I find appropriate to order.
71Finally, I accept Ms. Hughes' evidence as to the effects of these events on her as set out above.
Analysis of Issues
i. Was Ms. Hughes subjected to sexual harassment, or sexual solicitation/sexual advance?
72The 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... to . . . sex... to . . .
7(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;
- 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;
73I find that the various incidents of physical touching of the breasts and buttocks in the workplace; the attempt to push Ms. Hughes on her bed on November 7, 2003; the uninvited entry into her home on November 9, 2003, and the slapping of her buttocks; the attempt to grab Ms. Hughes' inner thigh; the telephone calls to Ms. Hughes' home to ask her what she was doing; and the visits to Ms. Hughes' home on December 4 and 9, 2003, represent a course of vexatious conduct and comment that violates ss. 5 and 7(2) of the Code. I find that Mr. Hussein knew or ought reasonably to have known this conduct was unwelcome. Ms. Hughes consistently expressed protest to any physical conduct or attempts to touch her made by Mr. Hussein. While Ms. Hughes may not have expressed protest in certain instances, such as where Ms. Hughes elected not to answer her door, I find that Mr. Hussein ought to have reasonably known that his uninvited visits to her home were not appropriate and were unwelcome.
74I further find that at least some of Mr. Hussein's conduct, including the attempt to push Ms. Hughes on her bed and the grabbing of her breasts, constitutes sexual solicitations or advances. As the owner of the store, Mr. Hussein was clearly a person in a position to confer, grant or deny a benefit to Ms. Hughes. Accordingly, I find that Mr. Hussein has also violated ss. 7(3)(a) and 9 of the Code.
75In making these findings, I have accepted that, although not all conduct occurred in the physical workplace, it falls within the ambit of ss. 5 and 7(2). The telephone calls and visits to Ms. Hughes' home were all part of a course of conduct that started in the workplace and extended to her home.
ii. Was Ms. Hughes subjected to a reprisal?
76Section 7(3)(b) provides as follows:
7(3) Every person has a right to be free from,
(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.
77In support of their argument that Ms. Hughes was subjected to a reprisal or threat of reprisal, the Commission and complainant relied on the evidence that Mr. Hussein picked at her work and held back her pay and threatened her with job loss if she did not sign that she had been paid in cash. I am not satisfied that there is sufficient evidence to establish that any of this conduct constitutes a reprisal within the meaning of s. 7(3)(b) of the Code.
78The evidence about Mr. Hussein "picking" at Ms. Hughes' work was sparse at best. Ms. Hughes did not provide any contextual details about the precise events that she was complaining about so as to permit me to assess what occurred. Instead, her evidence was more akin to a conclusion — that after November 9, 2008, he picked at her work and was argumentative — than a description of what transpired. In the context of such limited evidence, even assuming that the section would otherwise apply, I do not find that I can reasonably find that Mr. Hussein's actions constituted a reprisal.
79While I accept that Ms. Hughes was owed money at the time she left her employment, I do not find that there is sufficient evidence in this case to establish that the withholding of pay was linked to Ms. Hughes' rejection of Mr. Hussein's conduct, assuming that Mr. Hussein's conduct was a sexual solicitation or advance. While I accept that Ms. Hughes was touched inappropriately on various occasions throughout her employment, I also find that Ms. Hughes consistently rejected Mr. Hussein's conduct. Given these findings and the absence of a clear sense of timing of some of the incidents, I do not find that there is an obvious nexus between Mr. Hussein's touching of Ms. Hughes; her protesting; and his withholding of pay, which according to Ms. Hughes had gone on for three weeks.
REMEDY
80In their submissions, the Commission and complainant requested a number of remedies including general damages, damages for mental anguish, special damages, interest and public interest remedies. I grant the remedies in part but also find it appropriate to make different awards in respect of certain remedies from those requested.
DAMAGES
81The Commission and complainant sought $50,000 in general damages and $40,000 in mental anguish damages for the mental distress that the complainant suffered. At the time the case was argued, the Code provided for recovery under both heads of damages. The underlying assumption of the Commission and complainant's submissions for these amounts was based on different findings from those made above. Further, the Commission and complainant argued that I should conclude that given the multiple infringements, the maximum of $10,000 in mental anguish damages should be ordered for each infringement, including damages for mental anguish for sexual harassment, sexual advances, reprisal/threat of reprisal for refusing advances and for discrimination based on sex.
82I note that since the case was argued, the Tribunal's remedial powers have been amended to permit the Tribunal to order monetary compensation for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect (s. 45.2). However, I do not find that the amended language, including the removal of the reference to damages for mental anguish, affects the amount of compensation I find appropriate to award.
83In two recent cases, also dealing with complaints argued under the former damages section in the Code but decided under the current s. 45.2, the Tribunal referenced § 4 of the decision of the Board of Inquiry in Ketola v. Value Propane Inc., [2002] O.H.R.B.I.D. No. 14 (QL) [2002 CanLII 46511 (ON HRT), 44 C.H.R.R. D/37] in connection with its assessment of damages. The Tribunal stated that its earlier decision was valuable in its identification of relevant criteria as well as the relationship between a complainant's inherent right to be free from discrimination and damages for mental anguish (see Grzesiak v. DOT Benefits, 2008 HRTO 206 [reported 65 C.H.R.R. D/65] at § 104; and Wall v. Lippé Group, 2008 HRTO 50 [reported 64 C.H.R.R. D/26] at § 91). I also find it useful to consider the criteria set out in § 4 of Ketola v. Value Propane Inc., supra, and those listed at § 35 and 38 in Sanford v. Koop, 2005 HRTO 53 [reported 55 C.H.R.R. D/102] in determining the appropriate level of damages to be awarded for the loss arising out of the infringements experienced by the complainant in this complaint.
84In this case, Ms. Hughes was subjected to repeated incidents of inappropriate physical touching involving her breasts on one occasion and her buttocks on multiple occasions. The harassment that Ms. Hughes suffered continued for almost two months. The harassment happened not only at the physical workplace, but at her home, resulting in Ms. Hughes sitting in dark at her home fearful that Mr. Hussein would drop by.
85Further, the impact on Ms. Hughes was serious and continued after she left the Best Dollar Store. In this respect, her physician confirmed that she sought treatment from him regarding her experience at the Best Dollar Store up to January 20, 2004. I accept that Ms. Hughes was particularly vulnerable because of her history of past abuse and the impact of Mr. Hussein's conduct exacerbated her symptoms of sleeplessness and flashbacks of past abuse.
86However, I do not find it necessary to approach the request for damages in this case by reference to the number of incidents constituting either the harassment or sexual solicitation or the number of Code provisions applicable. The events are all part of a continuous pattern of behaviour and should be taken into account as a whole.
87Finally, in making this award, I have not considered the financial circumstances of the respondents, including Mr. Hussein's claim that he has been unable to find any steady work since his store was closed and that he has been living with relatives. Section 45.2 expressly provides that the Tribunal's jurisdiction is to pay monetary compensation to the party whose right was infringed "for loss arising out of the infringement". Given that the focus of the provision is to compensate the complainant for the breach of her rights under the Code, the financial impact these damages will have on the party responsible for the contravention of the Code is not a factor to be considered by the Tribunal. This was the case under the former provisions of the Code and the case law on general damages and I do not find the new statutory provisions to be materially different in that regard (see: Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 (Ont. Bd.Inq.). Accordingly, Mr. Hussein's testimony about his financial difficulties is not a matter I have considered in determining the appropriate amount to award Ms. Hughes in damages.
88Having regard to all the circumstances, I find that a global award of $25,000 is appropriate to compensate Ms. Hughes for the loss arising out of the infringements found in this decision.
SPECIAL DAMAGES
89In awarding special damages, the purpose is to place the complainant in the position that she would have been in had the discriminatory acts not occurred.
90In this case, the complainant seeks special damages consisting of monies that were outstanding from her employment at the date she left and special damages for lost wages from the date she left her employment until the date of this decision.
91With respect to monies owing from her employment, according to Ms. Hughes, she had 42.5 hours outstanding at the time she left her employment. Ms. Hughes conceded that she still owed some money to Mr. Hussein — she was equivocal in her evidence as to whether she had paid back $140 or $170 of the $250 initially borrowed to rent her apartment. However, while I accept that it is more probable than not that Ms. Hughes was owed money, I am not satisfied that it is appropriate to make any order for special damages for the monies outstanding at the time the complainant left her employment. For reasons outlined in § 79 above, I am not satisfied there is sufficient evidence that the monies outstanding were linked to the harassment she suffered.
92However, I do find that Ms. Hughes is owed special damages for a period of time after she left her employment. Ms. Hughes left her employment at least in part because of Mr. Hussein's conduct. Further, Ms. Hughes testified that, after she left her employment, she suffered sleeplessness and increased frequency of flashbacks of abuse suffered as a child. This evidence was supported by Dr. Kirk, who confirmed that she sought treatment from him on December 23, 2003, and January 12 and 20, 2004, for flashbacks and sleeplessness reportedly resulting from her treatment at the Best Dollar Store. No evidence was led about any attempts to seek alternative employment from the date she left the store to the present date.
93Based on these facts, the complainant's counsel seeks compensation for wages up until the date of this decision.
94I do not find it appropriate to award compensation for the period requested and instead order that the complainant be compensated for lost wages for the period December 10, 2003, to January 31, 2004. Having regard to the fact that the complainant left her employment in part because of the harassment and given the undisputed evidence that after leaving her employment, that she coped with an increase in flashbacks and sleeplessness, I find it reasonable that she would be unable to immediately seek alternative employment. However, given that the store closed down in February 2004, I find it appropriate to pay the complainant lost wages only until January 31, 2004.
95With respect to the precise amount, I find it appropriate to order compensation in the amount of $1,166.73. This figure is based on the following formula: 22.5 hours (representing the average number of hours per week worked by Ms. Hughes) multiplied by $6.85 (the minimum wage rate in effect in the period December 10, 2003, to January 31, 2004) multiplied by 7.57 (representing the number of weeks in the relevant period).
INTEREST
96The complainant's counsel also seeks pre- and post-judgment interest. No submissions were made as to what date interest should begin to accrue.
97I find in the case of general damages, pre-judgment interest should run from the date Ms. Hughes left her employment — December 9, 2003. For special damages, I find that the interest should run from February 1, 2004. Post-judgment interest is payable in accordance with the Courts of Justice Act and should run from 30 days from the date of this decision.
ORDERS FOR FUTURE COMPLIANCE
98The Commission requested that the Tribunal award the following additional remedies:
· That the personal respondent attend anti-discrimination, anti-sexual harassment, gender equality in employment coaching, at his own expense from an agency or individual approved by the Commission. This would involve multiple sessions. The personal Respondent shall provide a letter to the Commission from the coach indicating that he has genuinely benefited from the coaching prior to discontinuing the coaching.
· The personal Respondent shall advise the Commission of his current employer and any change in his employment situation within five days of the change.
· The personal Respondent shall advise the Commission should he ever own or manage another business or in any way act in a supervisory capacity in any context, including in a voluntary organization.
99The Commission's rationale for requesting employment coaching was that Mr. Hussein was not employed in a workplace and accordingly, training on anti-discrimination and gender equality may not be appropriate. No rationale was provided for requesting the other remedies other than the Commission would become aware if Mr. Hussein was employed or managed a business in the future.
100Section 45.2 of the Code provides that the Tribunal may make an order directing any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.
101In light of the circumstances of this case, given that Mr. Hussein's business closed down in February 2004 and that he has been without regular employment since that time, I do not find that it is appropriate to make any of the orders requested. I do not find that any further order would promote compliance with the Code.
ORDER
102In view of the above, I make the following order:
The respondents, 1308581 Ontario Inc. o/a The Best Dollar Store/The West Dollar Store and Tanvir Hussein are jointly and severally liable to pay to the complainant the following amounts:
a. Damages in the amount of $25,000.
b. Special damages in the amount of $1,166.73.
c. Pre- and post-judgment interest on all monetary awards. Pre-judgment interest to run on the general damages award from December 9, 2003, and on the special damages award from February 1, 2004. Post-judgment interest to run from 30 days of the date of this decision.