Schmor v. Stonechurch Vineyards Inc., 2009 HRTO 401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Schmor

Applicant

-and-

Stonechurch Vineyards Inc. and Lisa Edlington

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Lorne Slotnick Date: April 9, 2009 Citation: 2009 HRTO 401 Indexed as: Schmor v. Stonechurch Vineyards

1This is an Application dated July 7, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant complains of sexual harassment and reprisals.

2The Case Resolution Conference was held in Toronto on March 2, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant, the president of the corporate respondent as well two former employees of the respondent corporation. No parties were represented by counsel. The individual respondent, Lisa Edlington, did not appear. A call to her home number on the hearing date was answered by a man who did not identify himself but indicated that Ms. Edlington, who is no longer employed by the company, knew about the hearing but would not be attending.

3The corporate respondent operates a winery in Niagara-on-the-Lake. The applicant was employed part-time in the winery’s retail operation starting in September, 2006. Her last day worked was January 28, 2007, and she alleges she was not given any more shifts after that because she would not play along with sexually oriented comments and jokes by the individual respondent, Ms. Edlington. The corporate respondent denies it knew about any issues between the applicant and the individual respondent, and says it stopped giving the applicant work because she was not needed any more.

4The applicant’s complaint of sexual harassment is based on two allegations. First, when the applicant returned from vacation in November 2006, Ms. Edlington asked if she had any tan lines and whether she had sunbathed topless. The applicant said she replied that she had sunbathed topless in a private place. After that, she said, Ms. Edlington began calling her “boobie girl.” The applicant’s evidence is that Ms. Edlington used this phrase four or five times, over a period of several weeks, usually in front of other employees and customers. She says she found this embarrassing and uncomfortable.

5The second incident occurred on December 10, 2006. The applicant said that when she came into work, she advised Ms. Edlington that she had noticed the sign for the winery on the road listed incorrect opening hours for the store. She said Ms. Edlington responded by suggesting the applicant climb the pole on which the sign stood, and then slide down like a stripper. She then asked her if she was wearing any underwear, the applicant said. The applicant says she was offended by this remark.

6Ms. Edlington, whose title was Director of Events, does not deny calling the applicant “boobie girl.” In her response to the original complaint to the Ontario Human Rights Commission, she describes it as a “silly girly joke,” and says the applicant never brought her discomfort with her actions to her attention – a point with which the applicant agrees. After the complaint was filed, Ms. Edlington issued an apology, which states, “I am very sorry if I made you feel uncomfortable or embarrassed during your employment at Stonechurch. I mean this genuinely.” The applicant says she doubts the apology is sincere. In her response to the complaint, Ms. Edlington says she does not recall making the remark about sliding down the pole.

7As noted above, the applicant acknowledges she did not raise any concern about Ms. Edlington’s conduct with anyone in management, although she apparently did discuss the matter with several co-workers. Her evidence is that she did not feel there was anyone she could talk to because Ms. Edlington had the ear of the family that owned the winery, the Hunses, particularly Hank Hunse, the company’s president. The applicant said that after the remarks, she began to keep her distance from Ms. Edlington; there is no evidence that Ms. Edlington was aware of this.

8However, one of the applicant’s co-workers, Susan McCracken, said she had a discussion about Ms. Edlington on November 14, 2006, with Lambert Hunse, who is the winery’s owner and Hank Hunse’s father. Her evidence is that she raised a large number of complaints about Ms. Edlington with Lambert Hunse. Among the many concerns she mentioned was the “boobie girl” comment. There was no indication she was speaking on behalf of the applicant or at the applicant’s urging. Ms. McCracken, who had worked full-time for the winery for more than seven years, said Mr. Hunse’s response was to advise her to start looking for another job. Within a few days of this conversation, she said, her employment was terminated.

9The applicant said she believes the end of her employment is linked to Ms. McCracken’s complaint about Ms. Edlington. She said that when she was hired, it was to work on an as-needed basis, but that it was not for any fixed term. When the busy season ended around Christmas of 2006, she said, she expected the number of her shifts to be reduced. However, by the end of January, they were eliminated altogether. At the same time, she said, the company hired other employees to work in the store, including Ms. Edlington’s daughter, who was hired to work full-time at the company.

10The applicant provided copies of a chain of e-mail messages from March, 2007, between her and Hank Hunse, after several weeks in which she had been given no shifts. In the first message, she asks if she has been laid off, and if so, asks for her Record of Employment. Mr. Hunse’s reply in its entirety is “you can pick up your RoE on Monday.” The applicant indicates she would still like to continue working when shifts are available, and Mr. Hunse responds, “No, we will not be calling you back for the summer. Sorry.” The applicant then asked why others had been hired and whether she had done something wrong. Mr. Hunse’s response was “I do not need to give you a reason.”

11Mr. Hunse’s evidence is that the applicant was hired as a temporary employee and that there was no work for her after January, 2007. He agreed there was no written contract of employment or any other document indicating a fixed term. Mr. Hunse said no one told him that the applicant was offended by any of Ms. Edlington’s comments. He acknowledged that Ms. Edlington’s daughter was hired as a full-time employee in early 2007, but said her duties did not relate to the retail operation. However, a job description for this position put into evidence lists 18 job duties, several of which directly relate to the retail portion of the business, and Mr. Hunse stated that one of the reasons she was hired was because she had retail experience. While schedules for the store put in evidence provide no confirmation for the applicant’s assertion that other part-time employees were hired at the same time as her shifts were being eliminated, Mr. Hunse did not disagree that staff had been expanded. Asked at the hearing about the reasons for the hiring, Mr. Hunse replied that “we just decided.”

12I accept the applicant’s evidence of Ms. Edlington’s remarks, which was generally confirmed by the evidence of two other employees, Ms. McCracken and Anne Matiuschuk. I believe the applicant is sincere in her statement that Ms. Edlington’s remarks offended and embarrassed her, particularly when they were made in front of customers and other employees. But that does not in itself establish sexual harassment. For one thing, the Code defines harassment (section 10) as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” The evidence is quite clear that Ms. Edlington was never told her remarks were unwelcome, and the fact that the applicant began keeping her distance is not enough in the circumstances, in my view, to conclude that she knew her comments were unwelcome. However, given the evidence that the “boobie girl” remark was made in front of customers, I conclude that Ms. Edlington ought to have known that it was unwelcome. Regarding the single comment about the stripper pole, Ms. Edlington apparently thought she was being funny and there is no basis for me to conclude that she knew or ought to have known that the comment was unwelcome. With respect to the corporate respondent, management evidently knew of the issue once Ms. McCracken raised the matter with Lambert Hunse, and I will have more to say below about its response.

13Nevertheless, given the context, I cannot conclude that Ms. Edlington’s remarks violated the applicant’s right under section 7(2) of the Code to “freedom from harassment in the workplace because of sex.” Here, while the remarks may refer to body parts and activities that in other contexts have sexual connotations, there is no suggestion that Ms. Edlington was making any sexual requests or suggestions. In fact, the evidence is that the “boobie girl” comment began as part of a friendly and innocent conversation about sunbathing. It was not a conversation about sex or a conversation that was related to either party’s sexual interests. There can be little doubt that calling someone “boobie girl” in front of others, including customers in the store, would be seen as demeaning and embarrassing, just as would the use of any other insulting language, whether sexual or not. In my view, the word “boobie” in this context does not transform an insulting remark into harassment because of sex. Nor does the evidence support a conclusion that there was a poisoned work environment as that concept has been developed in cases such as Arias v. Desai, 2003 HRTO 1.

14On the question of reprisal, I found Ms. McCracken to be a credible witness. Her evidence is that when she complained to Lambert Hunse about Ms. Edlington, including the “boobie girl” comments, she was told to start looking elsewhere for work and was fired only two or three days later. Hank Hunse does not deny this evidence, but explains it by saying Lambert Hunse was likely just giving Ms. McCracken a fair warning that the staff would have to be trimmed because business was slow. Aside from the fact that Hank Hunse was not present for this conversation, his explanation is at odds with the facts: Ms. McCracken had worked full-time for more than seven years, and one would have expected her to be given proper notice if she was about to lose her job, not simply fired almost immediately after filing a complaint, and during a busy time at the company.

15The facts also do not support Hank Hunse’s statement that the applicant was hired only as a temporary worker for the autumn of 2006. There is no documented evidence of this such as a contract of employment for a fixed term, nor did the company issue a Record of Employment when it stopped scheduling the applicant until after the applicant made inquiries.

16The corporate respondent has not offered any reasonable explanation for the termination of the applicant’s employment, and Mr. Hunse’s curt e-mail messages to the applicant and his evasive responses at the hearing do not inspire confidence that the company’s decision was untainted by improper considerations. I note also that there was no evidence of any issues with the applicant’s performance of her duties at work. In the circumstances, the evidence supports the inference that the applicant’s days were numbered, as were Ms. McCracken’s, once the company’s management knew she was offended by Ms. Edlington’s comments. While I have not found that those comments constituted a violation of the Code, I do find that the applicant was offended by them and sincerely believed it was a human rights issue. The company kept her working for several weeks but stopped giving her shifts completely when it hired a new full-time employee in late January, 2007, supposedly during a very slow time of the business cycle. While there may have been other reasons for taking on a new full-time employee, I find on the balance of probabilities that the company’s action in terminating the applicant’s employment was at least partially in reprisal for her raising her human rights concerns through Ms. McCracken. This is a violation of the prohibition against reprisals in Section 8 of the Code.

17The applicant has requested compensation for her lost wages from the time her shifts were eliminated on January 28, 2007, to the time she found other work, which the evidence indicates is June 4 of that year. This period is 18 weeks. The applicant requests compensation based on 20 hours a week at her $10 rate of pay. However, her hours as shown in the schedules she provided (eliminating weeks she was on vacation and the Christmas holidays) averaged about 13 per week. In the circumstances, I believe it is appropriate to order compensation to her based on 13 hours weekly at $10 hourly for 18 weeks, a total of $2,340.

18In addition, the applicant is entitled to general damages for loss of her right under the Code to be free from reprisals, which I assess at $2,000. The applicant has asked for a variety of other compensation, including mailing and photocopying charges, travel and parking costs and time off work to attend the hearing, which I do not award. She is entitled to pre-judgment interest on the amounts payable in accordance with section 128 of the Courts of Justice Act, from the date of the original complaint, and to post-judgment interest on all amounts payable in accordance with the Courts of Justice Act. All sums are to be paid within 30 days of the date of this Decision.

ORDER

19Having found that the respondent, Stonechurch Vineyards Inc., violated section 8 of the Human Rights Code the Tribunal makes the following orders:

1. The respondent, Stonechurch Vineyards Inc., shall pay the applicant, Michele Schmor, within 30 days, the following amounts:

(a) general damages in the amount of $2,000 plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act from the date of the original complaint;

(b) $2,340 which represents wages the applicant would have received between January 29 to June 3, 2007 if she had not been terminated from Stonechurch Vineyards Inc., plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, from June 3, 2007; and

(c) post-judgement interest on all amounts payable in accordance with the Courts of Justice Act.