Staniforth v. C.J Liquid Waste Haulage, 2009 HRTO 717

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tina Staniforth and Randy Legere

Complainants

-and-

Ontario Human Rights Commission

Commission

-and-

C.J Liquid Waste Haulage Ltd. and John Cooney

Respondents

Decision

Adjudicator: Eric Whist

Date: May 29, 2009

Citation: 2009 HRTO 717

Indexed as: Staniforth v. C.J Liquid Waste Haulage

APPEARANCES

Tina Staniforth, Complainant ) Unrepresented Randy Legere, Complainant ) Unrepresented ) Ontario Human Rights Commission ) Jean Iu, Counsel C.J. Liquid Waste Haulage. Ltd. ) Charles Baker, Counsel John Cooney ) Monteith, Baker & Johnson ) Professional Corporation

INTRODUCTION

1Tina Staniforth’s complaint alleges discrimination, harassment and solicitation in employment on the basis of sex, in violation of sections 5(1), 7(2), 7(3)(a) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Ms. Staniforth further alleges that her right to claim and pursue her rights under the Code without reprisal was infringed contrary to sections 8 and 9 of the Code.

2Ms. Staniforth’s complaint centres on the conduct of John Cooney, the president and owner of C.J. Liquid Waste Haulage Ltd. (known as “C.J.’s”) during the period she worked for C.J.’s as a housekeeper. This was from July 7, 2003 to November 6, 2003. Ms. Staniforth alleges that Mr. Cooney made unwanted suggestive sexual comments to her, propositioned her, further sexually harassed her by visiting her home without invitation and, on one occasion, aggressively kissed her. Ms. Staniforth states that she eventually told Mr. Cooney’s common law spouse, Cathy Arnold, of this unwanted behaviour and that ultimately, given the circumstances, she was forced to quit her job.

3Randy Legere’s complaint alleges discrimination in employment on the basis of his marital status contrary to sections 5(1) and 9 of the Code. Mr. Legere was employed by C.J.’s as a truck driver and was, in 2003, the common law spouse of Ms. Staniforth (they separated in late 2004). . It is Mr. Legere’s contention that the terminating of his employment with CJ’s was as a result of Ms. Staniforth’s complaint about Mr. Cooney’s behaviour.

4Ms. Staniforth and Mr. Legere’s complaints were originally made to the Ontario Human Rights Commission (the “Commission”) and sent to the Tribunal on April 16, 2008 for adjudication. The Commission had combined the two complaints given their interrelated nature and the Tribunal heard the two complaints together.

[5] The hearing took place over four days with six witnesses; Tina Staniforth, Randy Legere, John Cooney, Cathy Arnold, Leanne Whittaker, Cathy Arnold’s daughter and Jim Roberts, a former employee of C.J.’s. Documentary evidence included Mr. Cooney’s cell phone records, photographs of both Mr. Cooney and Ms. Staniforth’s houses, time sheets for Mr. Legere and a police report related to a complaint made about Mr. Cooney by Ms. Staniforth to the York Regional Police. The Commission and Respondent made written submissions.

BACKGROUND

6The complaints focus entirely on events that took place between July and November 2003 when Ms. Staniforth and Mr. Legere were employed by CJ’s. C.J.’s is a small family owned company which operates a fleet of vacuum trucks. The company contracts to remove liquid wastes from businesses and haul this waste to designated disposal facilities. In 2003 C.J.’s operated three or four vacuum trucks out of two locations, one on Leslie St., the other on Highway 48. Both locations have facilities to park and service trucks. The location on Leslie St. is beside Mr. Cooney’s family home. It features a garage with the company office upstairs. Mr. Cooney’s common law spouse of 20 years, Cathy Arnold, runs the office and is responsible for the company’s customer relations, the dispatching of trucks to job sites and the company’s accounts. She is assisted by her daughter, Leanne Whittaker. Mr. Cooney’s is responsible for maintaining the trucks. There was evidence that the company has a practice of holding regular social events such as company barbeques and picnics as well as boat cruises on a boat owned by Mr. Cooney and Ms. Arnold. By all accounts C.J.’s is a close knit and successful company.

7Mr. Legere worked for C.J.’s as a truck driver, initially as an employee, and then beginning in 2002 as a self employed sub-contractor. Both Mr. Cooney and Ms. Arnold described him as a good worker.

8It was Mr. Legere who recommended Ms. Staniforth as a suitable housecleaner to Mr. Cooney and Ms. Arnold. Mr. Cooney and Ms. Arnold had advertised for a person to clean their home and Mr. Legere had put forward Ms. Staniforth’s name. Ms. Staniforth was working for Canadian Tire at the time. Mr. Cooney and Ms. Arnold knew Ms. Staniforth as Mr. Legere’s partner and because of her attendance at past company social events. Mr. Cooney testified that it was Ms. Arnold who made the decision to hire Ms. Staniforth. This decision was made after Ms. Arnold had come to learn how well Ms. Staniforth kept her own house. Although Ms. Staniforth’s job was specifically to clean Mr. Cooney and Ms. Arnold’s private home she was hired as an employee of C.J.’s. It was Ms. Arnold who supervised Ms. Staniforth’s work.

9Ms. Staniforth testified that although she was employed at a local Canadian Tire at the time she decided to accept the housekeeping job with C.J.’s because it would give her greater ability to be with her and Mr. Legere’s daughter who would have been six or seven years old at the time. Ms. Staniforth also had triplets from an earlier relationship but they generally lived with their father.

10I will deal with each of the complaints separately, beginning with Ms. Staniforth’s.

MS. STANIFORTH’S ALLEGATIONS

Unwanted Comments

11Ms. Staniforth testified that within two weeks of her beginning work Mr. Cooney began to make unwanted comments to her when he returned to his house for lunch. Ms. Staniforth testified that there were regular occasions when she would be alone with Mr. Cooney for lunch or for tea even though there would often be children in the house (either her daughter or Ms. Arnold’s teenage son and daughter). She testified that on these occasions Mr. Cooney would routinely make comments to her such as “You have the most beautiful eyes”, “You have fire in your eyes”, “You’re a very beautiful woman”, “You have a beautiful ass”, “You know you care for me”, “You know you are not happy with Randy” and “You know I am in love with you, that I would make you happy”.

12Ms. Staniforth stated that she initially tried to take Mr. Cooney’s comments lightly but they increasingly made her more uncomfortable given their nature and the fact that they occurred whenever Mr. Cooney was there. She testified that, at some point, she began to repeatedly tell Mr. Cooney to stop making these comments indicating that they bothered her. She stated that she would often say “John, please I’d rather not hear that” but that Mr. Cooney would nonetheless persist in making his comments. She testified that she generally did continue to sit with Mr. Cooney during lunches (as opposed to doing housework) notwithstanding his comments because she felt intimidated and that as an employee and a friend of Mr. Cooney’s she felt obliged to sit with him.

Home Visits

13Ms. Staniforth testified that Mr. Cooney also unexpectedly visited her own home on three occasions. She testified that the first time was in early September 2003 when Mr. Legere had been sent on a job “up North”. She testified that Mr. Cooney telephoned her at approximately 5:30 in the morning to ask if he could come by for a cup of coffee and then made it clear that he was already nearby. Ten minutes later he came by her house, parked in the back of the house and knocked on her back door. Ms. Staniforth said that she did let him in and that they had coffee for approximately 20-30 minutes. She testified that she could not recall what they generally discussed. She does recall that he kept saying that he hoped that he was not making her nervous and that he knew Mr. Legere was away and so he had come for coffee. Ms. Staniforth stated she was highly suspicious of Mr. Cooney’s behaviour given that he parked his car behind the house where it would not be seen from the road and that he came in the backdoor. She also wondered whether Mr. Cooney had deliberately sent Mr. Legere on an assignment “Up North” so Mr. Cooney could visit her. Ms. Staniforth also testified that while leaving Mr. Cooney asked her in the laundry room at the back of the house whether he could kiss her.

14Ms. Staniforth testified that within the week Mr. Cooney came by her house again, this time driving a blue pick up truck that was not his own. She testified that she recognized him and that when he came to the front door she refused to answer the door. She testified that she then received a telephone call and noted that her call display indicated that it was from a private caller. Ms. Staniforth suspected it was Mr. Cooney and did not answer the call.

15Ms. Staniforth testified that Mr. Cooney came by her house on a further occasion and that was to drop off something for Mr. Legere. She testified Mr. Cooney did not come to the house. In later testimony Ms. Staniforth indicated that Mr. Cooney actually appeared twice on the property and that on the second occasion he came to the house to say he had lost his wallet on the first visit.

Solicitation to Spend Night Together

16Ms. Staniforth stated that Mr. Cooney also invited her to spend the night with him. According to Ms. Staniforth Mr. Cooney told her that Ms. Arnold was going to a concert in Toronto with friends on October 31, 2003 (Halloween) and that as Ms. Arnold was to be away he was inviting Ms. Staniforth to go to a hotel that night with him.

Forced Kiss

17Ms. Staniforth testified that on November 5, 2003 she was working in the laundry room of Mr. Cooney and Ms. Arnold’s home when Mr. Cooney came in, closed the door, grabbed and held Ms. Staniforth and aggressively French kissed her; an action Ms. Staniforth objected to. Ms. Staniforth stated that when she was able to get away from Mr. Cooney she left the house and did not go back. She testified that she stopped off at a coffee shop on the way home at which point she received a telephone call from Mr. Cooney saying that he hoped that he had not scared her. Ms. Staniforth stated that she quickly ended the telephone call.

Meeting with Ms. Arnold

18On the next day, Wednesday, Nov 6, 2003, Ms. Staniforth returned to the Leslie St. company location and met with Ms. Arnold in the company office. She stated that she asked that Ms. Arnold’s daughter, Leanne Whittaker, stay for the meeting as a witness and as a support to Ms. Arnold. According to Ms. Staniforth the meeting lasted approximately 90 minutes.

19Ms. Staniforth testified that during this conversation she told Ms. Arnold of Mr. Cooney’s conduct. At one point in her testimony she stated that she believed she told Ms. Arnold of the incident of the aggressive kiss later testifying that she did not because she did not feel comfortable telling Ms. Arnold the whole story of Mr. Cooney’s actions. She also stated that she told Ms. Arnold that she wanted to continue to work for C.J.’s but in the office as she did not want to continue to work as the housekeeper. After this conversation Ms. Staniforth left the property and did not return. She testified that this was the last time she had direct contact with either Ms. Arnold or Mr. Cooney.

20Ms. Staniforth testified that Mr. Cooney did telephone Mr. Legere and later that during this conversation Mr. Cooney told Mr. Legere that Ms. Staniforth was not to come back on to his property or he would call the police. Mr. Cooney also allegedly told Mr. Legere that Ms. Staniforth had got Mr. Cooney into a lot of trouble with Ms. Arnold.

21Ms. Staniforth stated that on November 18, 2003 she went to the York Regional Police to report her concerns about Mr. Cooney’s conduct. Ms. Staniforth stated that she told the officer who interviewed her, Constable Wiche, that she did not want the police to take any action, that she was making a police report to protect herself in case there were any further actions taken against her. A copy of the police incident report based on this November 18, 2003 visit was before me. Ms. Staniforth also testified that Constable Wiche recommended that she contact the Commission. Ms Staniforth filed her complaint with the Commission on February 19, 2004.

22Ms Staniforth testified that she returned to work at Canadian Tire on November 23, 2003. She testified that she had been in contact with her previous manager at Canadian Tire even before her last day of work at C.J.’s and that she had been able to arrange to return to her previous job.

MR. COONEY’S EVIDENCE

23Mr. Cooney denied Ms. Staniforth’s allegations. He denied kissing her, inviting her to spend the night with him, visiting her at her house and making suggestive or unwanted comments to her while there were together in his house.

24Mr. Cooney testified that when he did go home for lunch, which was several times a week, Ms. Staniforth would join him for lunch or a cup of tea. According to Mr. Cooney Ms. Staniforth would dominate the conversation often telling him of her problems, the difficulties she was having with her children and the complaints she had with Mr. Legere. Mr. Cooney stated that he would advise Ms Staniforth not to run down people. He testified that he felt sorry for Ms. Staniforth who appeared to him to be unhappy in her life. He testified that he did like Ms. Staniforth as a person and that she was a good cleaner but that he often did not like what she had to say, particularly about Mr. Legere and her children.

25Mr. Cooney denied having made suggestive comments to Ms. Staniforth such as “You have fire in your eyes”, “You look good in jeans”, “Bend over” or “I can give you a better life”. He testified that he did make general comments about her appearance such as “Hi Tina you look good today” but nothing more. Mr. Cooney stated that Ms. Staniforth would just laugh in response to his comments about her appearance and that she never stated that she did not like the comments. Mr. Cooney testified that he never sensed any “vibes” to suggest that his comments were unwelcome. He stated he felt he was simply paying Ms. Staniforth an occasional compliment.

26Mr. Cooney testified that he did go to Mr Legere and Ms. Staniforth’s house on at least five occasions but these visits were to provide assistance to Mr. Legere. Mr. Cooney stated that, for example, he would plough snow or drop off a wood splitter or a load of gravel or some other item in response to a request from Mr. Legere. He testified that he never came to Ms. Staniforth’s house at 5:30 in the morning and that the only two times he was in the house were when he and Ms. Arnold had coffee with Ms. Staniforth before Ms. Staniforth was hired and when he fixed a sump pump. He denied having ever parked behind the house. He testified that there was one occasion when he knocked on the front door and that was when Ms Staniforth was home with her children and it was to ask her to help him look for his wallet which he had lost earlier in the day when he delivered a wood splitter to Mr. Legere.

27Mr. Cooney testified that he never sent Mr. Legere on a trip “Up North” in order to make it possible that he could appear at Ms. Staniforth’s house at 5:30 am. He noted that it was Ms. Arnold who scheduled the drivers, not him.

28Mr. Cooney denied inviting Ms. Staniforth to spend the night with him noting he had to care for his children and some of the children’s friends on Halloween.

29Mr. Cooney testified that he relies on one phone, his company cell phone, and that he never used it to call Ms. Staniforth.

30Mr. Cooney testified that there was no incident in a laundry room with Ms. Staniforth and that he never grabbed her or forcefully kissed her.

31Mr Cooney testified that there were major repercussions from when Ms. Staniforth met with Ms. Arnold on November 6. He testified that when he met with Ms Arnold after her meeting with Ms. Staniforth Ms. Arnold was angry and she questioned him as to what happened between him and Ms. Staniforth. Ms. Arnold then left the house with her two children to stay overnight with a friend. Mr. Cooney stated it was only the next day that he was able to talk at length to Ms. Arnold and convinced her that what Ms Staniforth had said was not true.

32Mr. Cooney acknowledged that he did tell Mr. Legere in a telephone conversation shortly after this that he did not want Ms Staniforth back on his property and that if she was to show up he would call the police.

33When asked why he believed Ms Staniforth would make her allegations if they were not true Mr. Cooney suggested that Ms. Staniforth was a messed up person who had issues with her family, who wanted to improve her position and who wanted to make money. He stated that Mr. Legere, himself, had said on lots of occasions that Ms. Staniforth caused problems wherever she went.

OTHER EVIDENCE

34I also heard testimony from Mr. Legere, Ms. Arnold, Ms. Whittaker and Mr. Roberts. Mr. Legere and Ms. Arnold both provided some helpful background albeit much of it about uncontested events. More importantly, Mr. Legere testified that he was unaware of Ms. Staniforth’s allegations about Mr. Cooney until Ms. Staniforth told him of her concerns and his testimony focussed, in large measure, on the events of November 5 and 6 and his telephone conversations with Mr. Cooney and Ms. Arnold in the days that followed. Ms. Arnold’s testimony focussed on her meeting with Ms. Staniforth on November 6 but she did provide some further information I found helpful. Ms. Whittaker and Mr. Brown’s testimony dealt almost exclusively with Ms. Staniforth and Ms. Arnold’s meeting on November 6 and the events that immediately followed.

CREDIBILITY

35This case, like many before the Tribunal, turns, in large measure on credibility. Many of the allegations are about events involving just Ms. Staniforth and Mr. Cooney. So whose account of events is more credible? In determining the credibility of witnesses, the Tribunal has made use of the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

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…

36In addition to these factors, the Tribunal has considered the following factors set out in Cugliari v. Clubine and Brunet 2006 HRTO 7, (para. 26): the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence.

37I am of the opinion that Ms. Staniforth’s evidence contains a number of substantial inconsistencies and implausibilities about key issues in dispute which leads me to conclude that her account of events cannot be considered credible or reliable. Mr. Legere had limited knowledge of many of Ms. Staniforth’s allegations and there were issues with what he did know and when that renders his testimony of limited benefit to Ms. Staniforth. Mr. Cooney’s testimony contains some inconsistencies. However, these inconsistencies are minor and I prefer his testimony to Ms. Staniforth’s flawed evidence. Mr. Cooney’s account of events is also aided by the forthright, detailed and credible evidence of Ms. Arnold. Ms. Arnold’s testimony about such key issues as Mr. Cooney’s cell phone, the evening of October 31, 2003 and her meeting with Ms. Staniforth on November 6, 2003 helps corroborate important parts of Mr. Cooney’s testimony. Her testimony about such events as the November 6 meeting and subsequent telephone calls directly contradicts Ms. Staniforth’s. In these instances I prefer Ms. Arnold’s testimony.

FINDINGS AND DECISION

38The onus is on Ms. Staniforth to show that, on a balance of probabilities, Mr. Cooney has discriminated against her as alleged. I have not been satisfied that Ms. Staniforth, the complainant, has provided a credible or reliable account of events in regards to her allegations that Mr. Cooney sexually harassed her, solicited her and in so doing discriminated against her based on her sex. I find that the documentary evidence before me fails to support her testimony and that it often reveals a number of the glaring inconsistencies in her accounts of events. Where Ms. Staniforth and Mr. Cooney’s evidence conflicts I prefer Mr. Cooney’s.

39I find the allegation that Mr. Cooney forcefully kissed Ms. Staniforth to not be true.

40I find the allegation that Mr. Cooney solicited Ms. Staniforth to spend a night with him to not be true.

41I find the allegation that Mr. Cooney telephoned Ms. Staniforth as part of his harassing behaviour to not be true.

42I find that while Mr. Cooney visited Mr. Legere and Ms. Staniforth’s house it has not been demonstrated that he specifically visited her early in the morning or in a soliciting or harassing manner as suggested by Ms. Staniforth.

43I find there is insufficient credible evidence to find that, on a balance of probabilities, Mr Cooney verbally harassed Ms. Staniforth while they spent time together in his house.

44I recognize in making these findings that Ms. Staniforth made a serious complaint to the Commission, has pursued her complaint over a number of years and forcefully and, at times, emotionally testified that she has been the victim of Mr. Cooney’s discriminatory actions. I have not attempted to construct a theory as to what Ms. Staniforth’s motivations might have been for her actions – I do not need to- although I did hear both Mr. Cooney and Ms. Arnold offer up their opinions.

45I have made my determination based on my assessment of the evidence before me and the credibility of the witnesses. I find that Mr. Cooney presented a consistent, albeit straightforward account denying Ms. Staniforth’s allegations while Ms Staniforth’s account was not credible or ultimately reliable. The further evidence to support Mr. Cooney’s position outweighed the evidence in support of Ms. Staniforth’s allegations.

46Ms. Staniforth has further alleged that she was the subject of reprisal for having brought her complaint of harassment to the attention of Ms. Arnold. I do not agree that the way in which she was treated after she complained constituted reprisal or contributed to her having to leave C.J.’s. For all of the above reasons Ms. Staniforth’s complaint is dismissed.

ANALYSIS OF EVIDENCE

The Allegation of a Forced Kiss

47Ms. Staniforth alleged that the forced kiss in the laundry room took place on November 5 and led her to leave work early. It was clearly suggested by Ms. Staniforth that this was the precipitating incident that led her to go and speak to Ms. Arnold the next day about Mr. Cooney’s conduct. However, there is no mention of this incident in Ms. Staniforth’s original complaint to the Commission dated February 19, 2004. Indeed, there is no mention of this incident in any of the documents related to Ms. Staniforth’s initial dealings with the Commission that were in evidence. The incident is not mentioned in Ms. Staniforth’s intake questionnaire dated December 3, 2003, a further response she provided to the Commission on April 12, 2004 (in relation to a letter from Mr. Cooney) or in her witness statement given to the Commission on June 13, 2007. There is no mention of this alleged incident in the York Regional Police incident report which was based on Constable Wiche’s interview with Ms. Staniforth of November 18, 2003.

48Moreover, Ms. Staniforth testified that it was on the evening of the very same day as the alleged kissing incident, November 5, that she went home and told Mr. Legere of Mr. Cooney’s conduct since she was hired in July. However, Mr. Legere testified that while Ms. Staniforth had told him of an incident where Mr. Cooney had grabbed her wrists in a laundry room he had never heard of the alleged kiss until Ms. Staniforth’s testimony before the Tribunal.

49Ms. Arnold also testified that when she was told by Ms. Staniforth at their meeting on November 6 that Mr. Cooney had been making unwanted suggestive comments to Ms. Staniforth she asked Ms. Staniforth if Mr. Cooney had ever touched her. Ms. Arnold testified that Ms. Staniforth said no. Ms. Whittaker remembered Ms. Staniforth as being adamant in the meeting that Mr. Cooney had not touched her.

50Ms. Staniforth’s Statement of Facts as provided to the Commission as part of the Commission’s hearing brief does state that Mr. Cooney grabbed Ms. Staniforth in the laundry room and aggressively kissed her. However, this is the only evidence consistent with Ms. Staniforth’s oral testimony on this issue.

51When confronted in cross-examination with the fact that her testimony regarding the laundry room was at odds with so much of the other adduced evidence Ms. Staniforth stated that she did not have an answer for this but she did maintain that she told the York Regional Police of the incident. She denied that she might have invented this account to bolster her complaint or that she was lying in stating that Mr. Cooney aggressively kissed her.

52I find that Ms. Staniforth’s account of the kiss in the laundry room is not credible and is a fabrication. It is inconsistent with the evidence provided by Ms. Staniforth to the Commission from December 2003 until July 2007. Ms. Staniforth also clearly testified that she told Constable Wiche of the forced kiss but this event is not reflected in his report. I do not find it plausible that if she told the police of this incident it would not be reflected in their incident report which is based on what Ms. Staniforth told the police of her dealings with Mr. Cooney.

53I find it significant that Mr. Legere, Ms. Staniforth’s common law husband at the time and her co-complainant testified that he was unaware of this specific incident. It should be noted that Ms. Staniforth did testify, at one point, that she did tell Ms. Arnold of this incident during their conversation on November 5 but she also testified that she did not in order to spare Ms. Arnold further hurt. This further inconsistency did not help Ms. Staniforth’s contention that such a kiss occurred.

54I also find it significant that Ms. Staniforth agreed during cross-examination that if one was to consider the range of harassing behaviour she was allegedly subject to an aggressive kiss would have been the most offensive. Therefore, I find it implausible that Ms. Staniforth would not have included such a significant offensive incident, if true, in most of her previous allegations about how Mr. Cooney sexually harassed her.

55I find that this fabricated allegation, which Ms. Staniforth was prepared to make before the Tribunal, undermines her general credibility and discredits her complaint against Mr. Cooney.

56In arriving at this conclusion I have considered carefully the Commission’s submission that victims of sexual harassment may find it difficult to disclose certain events and that non-reporting, incomplete reporting and delayed disclosure are common in cases involving some sort of sexual assault. I accept this to be true. I also believe that victims of sexual harassment or abuse do not necessarily tell loved ones of what has happened or the details of what has happened and that it is possible that Ms. Staniforth could have chosen not to tell Mr. Legere of having been forcefully kissed by Mr. Cooney. This is possible but not at all probable given the particulars of the evidence I heard.

57To begin, Ms. Staniforth did specifically claim at the hearing that she told two people in November 2003 of this event, her common law spouse, Mr. Legere, and Constable Wiche. However, both of these persons failed to corroborate the account (in Constable Wiche’s case by reflecting the incident in his report). By claiming she did tell two people in November 2003 including a police officer, it is difficult to understand why Ms. Staniforth would have subsequently failed to report this incident or even refer to this incident in her subsequent recorded dealings with the Commission but would have raised it again in 2007 when preparing her statement of facts and later at her hearing.

58It is also relevant to note that Ms. Staniforth never claimed in any written materials or in her examination-in-chief that she may have forgotten or repressed the forced kiss incident or found it difficult to report and that is why it did not appear in her earlier accounts of events, including her complaint. She provided no explanation as to why she was able to describe this incident at the time of her statement of facts but not earlier. When explicitly asked under cross-examination as to why this claim of a forced kiss did not appear in her earlier description of Mr. Cooney’s harassment she made no claim that she may have forgotten or repressed this event or was embarrassed to report it. In other words, Ms. Staniforth failed to provide any explanation at her hearing for why she may have failed to report this incident to the Commission in 2003, 2004 and later. As noted, I find Ms. Staniforth’s claim to having been a victim of a forced kiss to be a fabrication and that it undermines her overall credibility and the reliability of her other allegations.

Telephone calls

59Ms. Staniforth testified that she received approximately 10 personal telephone calls from Mr. Cooney during the period of August to November 2003. These included calls while Mr Cooney was visiting her house and a call on November 5 after the alleged forced kiss in the laundry room. Ms. Staniforth testified that she never called Mr. Cooney.

60Mr. Cooney denied having ever called Ms. Staniforth. Mr. Cooney testified that he used only one telephone, a cell phone issued to him by C.J.’s. Ms. Arnold also testified that this was the only telephone Mr. Cooney used.

61The cell phone records for Mr. Cooney’s business cell phone for the period of August 9, 2003 to November 5, 2003 were before me. They show only one cell phone to either Ms. Staniforth’s home telephone or cell phone. This was on November 5. Mr. Cooney testified that on November 5 he received an incoming call and that he later returned the call but did not speak to anyone. It would appear, from the cell phone records that Mr. Cooney did receive an incoming call at 13:12 on Nov 5 from an unidentified number in Keswick and that he called Ms. Staniforth’s telephone number, an identified Keswick number, at 13:15 for less than a minute. Ms. Staniforth’s testimony was that Mr Cooney had called her on November 5 after she had left the house and asked her if he had scared her. She denied having called him on this day.

62Based on the cell phone records before me both of Ms. Staniforth’s account of what happened on November 5 (that she received an unsolicited call from Mr. Cooney) and Mr. Cooney’s account (that she called him from a Keswick number and he returned the call but did not make contact) are possible and I make no finding on this point. However, I find Ms. Staniforth’s claims that Mr. Cooney called her approximately 10 times over the period August to November 2003 to not be credible given the telephone records before me do not show this to be the case. This was significant evidence for me in considering the credibility of the parties, particularly given Ms. Staniforth’s repeated references to receiving unwanted telephone calls from Mr. Cooney.

63The Commission did question Mr. Cooney as to whether he may have had a second telephone which he used to contact Ms. Staniforth but there was no evidence of this being the case. Importantly for me, Ms. Arnold testified that Mr Cooney had only one phone and that was the cell phone issued to him by C.J.’s.

64There were two further telephone related issues of note. One, Ms. Cooney testified that when she received telephone calls from Mr. Cooney her call display would show that she was receiving a call from a “private caller”. This testimony was at odds with Ms. Staniforth’s response on her witness statement in which she stated that when Mr. Cooney called her her call display would indicate “John Cooney” (see questions #27, 28 and 29). I do not understand how Ms. Staniforth would provide this inconsistent evidence given her stated anxieties about Mr. Staniforth subjecting her to unwanted telephone calls and her testimony that she often chose not to answer calls she suspected came from Mr. Cooney. This inconsistency contributes to my conclusion that Ms. Staniforth did not receive the calls from Mr. Cooney she claimed to have.

65The second issue was that Ms. Staniforth also testified that she had kept records for her own cell phone calls, records that would have included the period July to November 2003, until approximately one and a half years ago when she discarded them. Ms Staniforth stated that she did not appreciate that these records could have been potentially helpful to her human rights case. The Commission also argued in its Reply submissions that Ms. Staniforth did not appreciate the need to keep such records not understanding the litigation process and the benefits of collecting evidence.

66I find this claim improbable. I believe that if Ms. Staniforth had telephone records indicating that Mr. Cooney had called her on numerous occasions she would have appreciated that this was important evidence to support her allegations at some point during the period from 2003 until sometime it appears in 2008 when she apparently threw these documents out.

Solicitation to Spend the Night Together.

67It was not in dispute that Ms. Arnold was in Toronto for Halloween night to see a concert. Ms. Staniforth complaint states that Mr. Cooney told her that he was prepared to get a hotel room for them while Ms. Arnold was away. When asked more details of this by the Commission on July 17, 2007 the following exchange between the Commission and Ms. Staniforth was recorded:

In point 3(e) of your complaint you refer to a time in October 2003 when you state that Mr. Cooney told you that he wanted to get a hotel while his wife was at a concert in Toronto can you give me more details of this?

That would have been Cathy going to a Cher concert so she was gonna be staying overnight and he said he could book a place that night because she wouldn’t be around so she wouldn’t know where he was anyway. That **** [her son] would be home and he would be with **** [her daughter] so it would be a perfect opportunity for us to go away for night.

**** was their older son?

Youngest, and it’s not his son, it’s Cathy’s

So he implied that ***** [her son] would baby-sit for **** [her daughter]?

***** [her daughter] would be there to care for **** [her son].

68However, Mr. Cooney testified that this would not have been possible for him to arrange as that night he was responsible for caring for Ms. Arnold’s children as well as friends that her son had invited for a sleepover. More significantly, both Mr. Cooney and Ms. Arnold testified that they had never gone out and left her children alone or with caregivers, that one or both of them had always stayed home with the children or that the family had gone out together. Ms. Arnold also testified that she would have found it highly unusual and suspicious if Mr. Cooney had not been at home and that her children would have reported to her as to what happened. I prefer Ms. Arnold’s and Mr. Cooney’s consistent and credible testimony that Mr. Cooney would not have arranged to be away Halloween night given his established parental responsibilities and his and Ms. Arnold’s childcare practices.

Visits to Ms. Staniforth’s house.

69Ms. Staniforth’s testimony was that Mr. Cooney came to her house unsolicited and behaved in a manner that she felt was inappropriate and, in effect, harassing. She testified that the first occasion in September involved Mr. Cooney telephoning her at 5:30 am, asking to meet for coffee, parking in the rear of the house, coming in the back door, telling Ms. Staniforth not to be nervous, and when leaving asking for a kiss. According to Ms. Staniforth’s testimony the second visit occurred within a week of the first and involved Mr. Cooney arriving in someone else’s vehicle, coming to the front door and Ms. Staniforth refusing to answer the door. Ms. Staniforth testified that she then received a telephone call from Mr. Cooney (a “private caller’) which she did not answer.

70There were a number of inconsistencies between this account of events and the accounts Ms. Staniforth provided in her original complaint, her witness statement and her statement of facts.

71In her complaint Ms. Staniforth states that the first visit occurred on an evening in August and her complaint makes no mention of Mr. Cooney entering the house and having coffee and asking Ms. Staniforth if he could have a kiss. The second visit is briefly described and is consistent with Ms. Staniforth’s testimony but it does refer to Mr. Cooney telephoning Ms. Staniforth to invite her to spend the night together. Ms. Staniforth’s testimony was Mr. Cooney asked her in person to spend the night with him.

72When giving her witness statement to the Commission on July 17, 2007 Ms. Staniforth also described two visits from Mr. Cooney. The first described visit is consistent with her testimony albeit it suggests the visit took place in August rather than September and there is no mention of the request for a kiss. However, the second visit is described as having taken place specifically on October 17, Ms. Staniforth’s birthday, rather than within a week of the first visit (in August or September). The witness statement also suggests that when Ms. Staniforth did not answer the front door Mr. Cooney telephoned and spoke to Ms. Staniforth and that he told her not to be afraid, that he was not going to hurt her and asking her to open the door.

73In her statement of facts Ms. Staniforth does significantly state that she was earlier mistaken when she had indicated that Mr. Cooney had first visited her in the evening and that he had asked her on the telephone to spend the night with him. She states that she should have said Mr. Cooney visited her in the morning and asked her in person to spend the night with him. This addresses two inconsistencies.

74In her statement of facts Ms. Staniforth also provides an account of the first and second visits which is largely consistent with Ms. Staniforth’s testimony except there is again no mention of Mr. Cooney’s request for a kiss and she states that the second visit took place in November. This account also states that when she did not answer the door during his second visit Mr. Cooney telephoned her and they spoke. The statement of facts also indicates that Mr. Cooney came to her house five times and always early in the morning. Ms. Staniforth’s testimony was that there were three visits.

75In summary, the key inconsistencies for me are that some accounts refer to Mr. Cooney asking to kiss Ms. Staniforth while others do not. The suggested dates for the first two visits vary; that the first visit occurred in August or September, that the second visit occurred either one week later, on October 17 or in November. There are also differing accounts as to whether Mr Cooney spoke to Ms Staniforth by telephone after she did not answer the door on the second visit.

76I find these inconsistencies troubling. I am of the opinion that if Mr. Cooney asked Ms. Staniforth for a kiss when he visited her for the first time this would have been a significant escalation in his harassing behaviour and something one might reasonably expect to be noted by Ms. Staniforth in her various accounts of what happened. However, it is only first identified in Ms. Staniforth’s statement of facts. When asked during cross-examination why Mr. Cooney’s request for a kiss did not appear to have been identified by Ms. Staniforth prior to her statement of facts Ms. Staniforth stated that she did not have an answer for that. I note here there was no reference by Ms. Staniforth to having only remembered this incident at the time of her statement of facts or having repressed the memory of this incident.

77In terms of the timing of the first visit I further note Ms. Staniforth’s written materials refer to the first visit from Mr. Cooney as having occurred in mid August. This is indicated in her complaint and in her statement of facts. The disclosed documents from Mr. Legere speak of him having seen tire tracks outside of the back of the house in August (there is also references to having seen them in July). However, at the hearing Ms. Staniforth changed her account to say the incident occurred in September. This may not, on the face of it, appear to be that significant but I note that Mr. Cooney put into evidence Mr. Legere’s time sheets for August which would appear to indicate that Mr. Legere was never on an assigned job beginning before 5:30 in the morning in August when Mr. Cooney supposedly visited Ms. Staniforth.

78The inconsistent evidence as to when the second visit occurred is troubling given Ms. Staniforth’s widely disparate accounts suggesting the visit occurred one week after the first visit, specifically on Ms. Staniforth’s birthday on October 17 and in November.

79Finally Ms. Staniforth testified that she found Mr. Cooney’s second visit disturbing and indeed threatening in that he appeared in someone else’s vehicle and came to the front door unannounced. If this was the case I do not understand why Ms. Staniforth provided conflicting accounts as to whether she spoke to Mr. Cooney on the telephone when he called her from outside her front door or not.

80I also heard considerable evidence about the tire tracks at the back of the house and whether Mr. Cooney parked there deliberately in order not to be seen from the road. Ms. Staniforth testified that Mr. Legere had seen tire tracks behind the house and had asked Ms Staniforth about these. Ms. Staniforth testified that she suggested that these tracks may have been made by a worker’s vehicle and said nothing more until the evening of November 5 when she told Mr. Legere of Mr. Cooney’s behaviour and that the tire tracks were made by Mr. Cooney’s truck when Mr. Cooney visited her. Mr. Legere testified that Ms Staniforth had indeed told him that these tracks had been made by Mr. Cooney’s truck. This was potentially helpful testimony for Ms. Staniforth. However, Mr. Legere provided inconsistent evidence as to when his conversation with Ms. Staniforth took place and when he first saw the tire tracks.

81Mr. Legere stated on his December 3, 2003 intake form that Ms. Staniforth had come to him quite concerned in late August and told him that Mr. Cooney had unexpectedly come to their home and had parked his truck out back. In a document Mr. Legere prepared on April 7, 2004 Mr. Legere stated that he came home one day in July 2003 and saw tire tracks behind the house. In testimony Mr. Legere testified that Ms. Staniforth had told him about Mr. Cooney’s visits not in July or August or on November 5 as suggested by Ms. Staniforth but two weeks before November 5. He later testified it was one week before November 5. This inconsistent evidence from Mr. Legere did not help Ms. Staniforth.

82Mr. Cooney’s contention was that he had only visited Ms. Staniforth and Mr. Legere’s house to provide assistance (e.g. snow plowing, dropping off a log splitter) and that if he left tire tracks they would have been beside the house not behind.

83Given all of the above concerns I have not been satisfied that Ms. Staniforth’s claims as to the nature of Mr. Cooney’s visits to her home are credible or reliable.

Comments Made by Mr. Cooney

84There remains the significant issue of what Mr. Cooney may have said to Ms. Staniforth during lunchtimes at his house. There is no direct evidence to corroborate either parties claims as to just what was said. Ms. Staniforth has consistently identified the types of comments she alleges Mr. Cooley to have made and her repeated requests for Mr. Cooney to stop. Mr. Cooney maintained that his comments about Ms. Staniforth’s appearance were complimentary and well received and he was not asked to stop.

85It is difficult to determine what took place. Clearly comments were made by Mr. Cooney to Ms. Staniforth. He claims they were about Ms. Staniforth’s general appearance and never contested. She claims they were more suggestive and that she made known that she did not want to hear these comments. Comments about appearance can certainly constitute harassment, particularly if they are suggestive or about specific body parts and are unwelcome or ought to have been known to be unwelcome. If I accept Ms. Staniforth’s allegations about what was said I would find Mr. Cooney’s comments to be harassing in nature and serious given their constancy and the failure of Mr. Cooney to stop when asked. But if I accept Mr. Cooney’s account of what was said I cannot conclude that his comments constitute harassment. They would appear to be comments about Ms. Staniforth’s general appearance that were not sexual or suggestive in nature and that were not objected to.

86And whose account of what took place over lunch do I find more credible? Ms. Staniforth’s credibility on a number of important points, the forced kiss, the phone calls and the visits is very much an issue for me in considering what Mr. Cooney may or may not have said. In the end I do not find that Ms. Staniforth has established that Mr. Cooney’s comments at lunch constitute sexual harassment.

The Journal

87It is relevant to note that Ms. Staniforth testified that she kept a journal during her time working for C.J.’s expressly to record all of Mr. Cooney’s objectionable behaviour. This was unexpected testimony in that there appeared to be no other evidence before me that referred specifically to a journal. Mr. Legere later testified that he was aware of this journal’s existence but had never read it. A closer review of the documentary evidence does indicate that Ms. Staniforth referred to logging incidents about Mr. Cooney’s actions and having given a log to Ms. Arnold at the meeting on November 6. (see items #19 and #24 of Ms. Staniforth’s witness statement to the Commission).

88Ms. Staniforth also testified that she gave her journal to Ms. Arnold on November 6 when she brought forward her complaint about Mr. Cooney but that Ms. Arnold chose not to look at it. This evidence was at odds with Ms. Arnold’s testimony that Ms. Staniforth had told her that she had a journal of what had taken place and that when Ms. Arnold had asked after it Ms. Staniforth stated it was actually a “mental journal” not a physical journal.

89It is not clear to me that a physical journal was indeed offered to Ms. Arnold as claimed by Ms. Staniforth. Ms. Staniforth’s recollection of the meeting was rather general and vague. By contrast Ms. Arnold had a very precise and detailed recollection of the meeting. She denied having been offered a journal. On the other hand there are references to a log in a statement Ms. Staniforth made to the Commission which appear to suggest that a journal might exist and that Ms. Staniforth saw this journal as important evidence in support of her claims. Yet no journal was ever produced at the hearing.

90Ms. Staniforth testified that she gave the journal to Constable Wiche. She acknowledged, during cross-examination, that a journal, written at the time of the alleged harassment, would be important documentary evidence in a case in which the decision might turn on whose account of events was more credible. She also acknowledged that she had not made a copy of the journal nor had she tried to retrieve a copy from the police in the 5 1/2 years since she provided it to Constable Wiche in November 2003. It is not clear to me that this journal exists, or more importantly, that if it does, that it is what it is purported to be, a contemporaneous account of key events that supports Ms. Staniforth’s claims.

Ms. Staniforth’s Resignation

91There is the further issue of Ms. Staniforth’s resignation. The Commission submitted that Ms. Staniforth was forced to resign because of Mr. Cooney’s harassing behaviour. The Commission argued that employees who quit their jobs because they can no longer endure an environment in which they have been harassed cannot be said to leave their work voluntarily. In these circumstances their departure should be seen as a result of the discriminatory treatment they received.

92I readily agree with this argument but this is a case in which I do not find that Ms. Staniforth has been subject to sexual harassment and solicitation. As a consequence I am not prepared to find that she was forced from her job for having been a victim of such harassment and solicitation.

93However, a further issue is that Ms. Staniforth also claims that she was the victim of reprisal for attempting to exercise her rights under section 8 of the Code. Unfortunately, I heard no arguments regarding this alleged reprisal. Ms. Staniforth’s claim, I believe, is that the evidence of reprisal was Mr. Cooney’s statement to Mr. Legere that if Ms. Staniforth came back onto his property he would call the police. Mr. Cooney acknowledged having made this statement after Ms. Staniforth met with Ms. Arnold on November 5.

94Section 8 of the Code states

Reprisals- Each person has a right to claim and enforce his rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act without reprisal or threat of reprisal for doing so.

95It is questionable whether a person who knowingly makes a false allegation of discrimination is protected from reprisal under section 8 of the Code. I am doubtful that if an employer was to, for example, take disciplinary action or terminate a person for knowingly making a false allegation of discrimination whether this would constitute reprisal. However, my decision on the question of reprisal is based on the facts of this case which suggest that ultimately no retaliatory actions were taken against Ms. Staniforth for her complaint.

96It is agreed that Mr. Cooney made a statement to Mr. Legere indicating that if Ms. Staniforth came back on his property he would call the police. However, I do not accept Ms. Staniforth’s statement in her complaint that Mr. Cooney also stated in his telephone call to Mr. Legere that Ms. Staniforth’s employment was terminated. Mr. Legere did not say this was the case and Mr. Cooney denied any reference to termination. In my opinion Mr. Cooney’s statement was an emotional response to learning that Ms. Staniforth had told Ms. Arnold that Mr. Cooney had harassed Ms. Staniforth, an allegation that clearly caused complications in Mr. Cooney and Ms. Arnold’s relationship, an allegation that Mr. Cooney has denied and an allegation I have found not to be proven. However, the key issue here is not whether Mr. Cooney’s statement was, in some way, understandable as an emotional response to the situation, but whether it had any significance or effect on the way Ms. Staniforth was subsequently treated.

97The evidence before me was that it was Ms. Arnold who controlled Ms. Staniforth’s employment. It was Ms. Arnold who hired Ms. Staniforth, and who supervised her work. It was clear from the evidence that Mr. Cooney had no responsibilities for dealing with domestic issues or directing Ms. Staniforth’s work.

98Ms. Arnold testified that several days after November 6 and after Mr. Cooney’s comment she telephoned Ms. Staniforth specifically to ask her when she was returning to work. She testified that Ms. Staniforth reiterated her request to work for C.J.’s in the office. Ms. Arnold denied the request (there were no office positions) and indicated that Ms. Staniforth was expected back at work as a housekeeper. When asked why Ms. Arnold would want Ms. Staniforth back under the circumstances she made the frank admission that she did not want Ms. Staniforth to be able to say that Ms. Arnold unjustly fired her.

99I have no doubt that the circumstances were strained between Ms. Arnold and Ms. Staniforth given Ms. Staniforth’s allegations. However, I am satisfied that C.J.’s took no retaliatory action against Ms. Staniforth for her allegations, that the company, through Ms. Arnold, very deliberately made sure that her opportunity to work to continue to work as a housekeeper was unaffected. Mr Cooney’s outburst did not have a substantive bearing on the way Ms. Staniforth was treated or on her opportunity to continue work at C.J.’s. It does not constitute reprisal, it does not constitute constructive dismissal which could be interpreted to be an act of reprisal. I find there is no violation of the Code under Section 8.

100I do note here that Ms. Staniforth testified that she had no contact with either Mr. Cooney of Ms. Arnold after November 6. However, I find that I prefer Ms. Arnold’s account of a further telephone call in which Ms. Staniforth’s return to work was expressly discussed. Ms. Arnold’s description of the telephone call was detailed, specific and ultimately credible particularly given Ms. Arnold’s forthright admission that part of the motivation for the telephone call was to have Ms. Staniforth return to work so that she could not claim she was unfairly treated or terminated.

101I now turn to Mr. Legere’s complaint

MR. LEGERE’S ALLEGATIONS

102Mr. Legere’s testified that he had a number of telephone calls with Mr. Cooney and Ms. Arnold in the days following the November 6 meeting between Ms. Staniforth and Ms. Arnold. He testified that Mr. Cooney and Ms. Arnold indicated during these telephone calls that they wanted to discuss with him what was happening with Ms. Staniforth prior to him returning to work. However, Mr. Legere contends that before any substantive discussions took place between he and Mr. Cooney and Ms. Arnold he was abruptly terminated and that this was on the basis of his marital relationship with Ms. Staniforth.

The Telephone calls

103Mr. Legere testified that he did see Ms. Arnold on November 6 after her meeting with Ms. Staniforth. Mr. Legere stated that he and Ms. Arnold discussed the need to resolve Ms. Staniforth’s complaints. Mr Legere testified that after his conversation with Ms. Arnold he expected to receive a telephone call from Ms. Arnold or Mr. Cooney about what might happen next.

104Mr. Legere did end up speaking to Mr. Cooney and Ms. Arnold several times by telephone. Mr. Legere provided somewhat different accounts of these telephone calls in his testimony and in the various documents he provided. However, the evidence was generally consistent about a number of key points.

105Mr. Legere first telephone conversation was with Mr. Cooney. According to Mr. Legere this conversation likely took place on Thursday November 6. Mr. Legere testified that it was during this call that Mr. Cooney stated that he did not want Ms. Staniforth on his property and that Ms. Staniforth had got him to a lot of trouble with Ms. Arnold.

106Mr. Legere stated that given the overall uncertainty of the situation and the fact that he was expecting a further telephone call from Mr. Cooney or Ms. Arnold he did not go to work on the Friday or Saturday November 7 and 8. On Sunday November 9, having not heard from Ms. Arnold or Mr. Cooney, he telephoned and, it appears, spoke twice to Ms. Arnold and Mr. Cooney. Mr. Legere testified that during the first telephone call on Sunday Mr. Cooney stated that Mr. Legere’s truck had broken down and there was no work for Mr. Legere on the Monday. Mr. Legere did not find this to be likely given he had had no problems with his truck. Ms. Arnold then called back to say that Mr. Legere was to come into C.J.’s Highway 48 location on Monday morning at 7:00 am to talk to Mr. Cooney about all that was going on and that Mr. Legere had no options but to do so.

107Mr. Legere did not go into work on Monday, November 10. It appears this was because his partner, Ms. Staniforth, was not sure what she wanted to do about her complaint. Mr. Legere testified that he and Ms. Staniforth had been discussing how she might proceed and that they had decided that she should make some sort of formal complaint about Mr. Cooney’s actions and to go to the police.

108Mr. Legere stated that on Tuesday November 11, Mr. Arnold sent an employee to Mr. Legere’s house with a cheque for Mr. Legere. The employee also asked for the shop key and the company cell phone. Mr. Legere testified that this meant that his employment with C.J.’s was over. He stated he had no further contact with Mr. Cooney or Ms. Arnold.

Mr. Cooney and Ms. Arnold’s Evidence

109Mr. Cooney and Ms. Arnold’s testimony regarding the telephone calls was also not entirely consistent. Mr. Coney testified that after learning of Ms. Staniforth’s allegations he wanted to speak to Mr. Legere to explain to him what he felt had happened. He testified that he considered Mr. Legere a friend and a good worker. He stated he spoke to Mr. Legere on the night of Thursday November 6 and that in addition to stating that Ms. Staniforth was not to come back on his property he tried to explain that nothing happened between Ms. Staniforth and himself.

110Mr. Cooney testified that he was present on the Sunday when Ms. Arnold spoke to Mr. Legere twice. During the first call Ms. Arnold told Mr. Legere that they needed to address the situation at work. Mr Cooney recalls telling Ms. Arnold to say to Mr. Legere that there was no work for him and that he might have also said that Mr. Legere’s truck had broken down. He testified that during the second phone call Ms. Arnold asked that Mr. Legere come into C.J.’s Highway 48 location on Monday morning to discuss what was happening. Mr Cooney stated that during this Sunday evening conversations Mr. Legere indicated that he could not work under the circumstances, a likely reference to Ms. Staniforth’s complaint of sexual harassment against Mr. Cooney.

111Mr. Cooney testified that he also spoke to Mr. Legere on Tuesday November 11 at which time Mr. Legere stated again that he could not come back to work given the circumstances. Mr. Cooney later testified that he was not sure he did speak to Mr. Legere on the Tuesday. He further stated that it was on this Tuesday (November 11) that he sent an employee to Mr. Legere’s house to ask for the shop keys, the company cell phone and to give Mr. Legere a final cheque. Mr. Cooney’s stated that the termination was based on Mr. Legere indicating that he could not come back to work under the circumstances.

112Ms. Arnold testified that Mr. Legere called on Sunday November 9 about work and that she believed that she ended up speaking to Mr. Legere twice that night. While she did not recall the exact sequence of events she does recall Mr Cooney saying that Mr. Legere’s truck had broken down and that there was no work for Mr. Legere and that she told Mr. Legere that he had to come in on Monday morning to discuss what was happening. She testified that she told Mr. Legere that he had no options about coming in and that he could not simply return to work as if nothing had happened.

113Ms. Arnold estimated that it was about a week before the decision was taken to terminate Mr. Legere’s contract and that it was after this that Mr. Cooney sent an employee to Mr. Legere’s house. Ms. Arnold’s description of the timing of Mr. Legere’s termination was uncharacteristically vague although she agreed that it took place on a Tuesday. Ms. Arnold stated that the decision to terminate Mr. Legere was based on the fact that Mr. Legere had not returned to work and that a decision had to be made.

FINDINGS AND DECISION

114Ms. Staniforth’s allegations regarding Mr. Cooney’s conduct clearly had a significant effect on Mr. Cooney and Ms. Arnold, both as a couple and as employers. It is understandable that they would want to sort out the ramifications of these allegations for their relationship with Mr. Legere both as a friend and employee. It appears that this is what they attempted to do on Sunday November 9 when they asked Mr. Legere to meet with them to discuss what was happening. However, I am of the opinion that C.J’s proceeded to abruptly and unreasonably end Mr. Legere’s employment. I find, based on the evidence before me, that Mr. Legere’s employment with C.J.’s was terminated on Tuesday November 11, the day after he failed to appear as requested. I am of the opinion that when Mr. Cooney and Ms. Arnold referred to Mr. Legere having a period of extended time to consider his future at C.J.’s they were referring to the period of Thursday, November 6 to Monday, November 10.

115I do not accept that Mr. Legere indicated verbally or by his actions an ongoing unwillingness to return to work or to co-operate with Mr. Cooney and Ms. Arnold’s interest in discussing what was happening. Such unwillingness to work or refusal to co-operate might have eventually been potential grounds for ending Mr. Legere’s employment contract. However, Mr Legere’s termination was on Tuesday, November 11 a day after he failed to appear to discuss a contentious and complicated issue involving his common law spouse. I find the decision to terminate Mr. Legere was precipitous and was not simply made because of his behaviour but was, in some significant measure, because of the behaviour of his partner. As a consequence he was discriminated against because of his marital status and his rights under the Code have been violated.

ANALYSIS OF THE EVIDENCE

116The parties agree that Mr. Legere was asked on Sunday May 9 to come into work on Monday November 10 to discuss the effects of Ms. Staniforth’s allegations and that Mr. Legere did not appear. It is possible that Mr. Legere stated on the Sunday he was not prepared to work “under the circumstances” as alleged by Mr. Cooney.

117Mr. Cooney did testify that Mr. Legere repeated that he was not prepared to work in a telephone conversation on Tuesday, November 11. Mr. Legere denied this and Mr. Cooney himself suggested that this conversation may not have occurred on Tuesday. Ms. Arnold made no reference to such a conversation. I have not been persuaded such a conversation took place on the Tuesday.

118More importantly, I find that Mr. Leger’s termination did take place on Tuesday, November 11. Mr. Legere stated this was the date as did Mr. Cooney, albeit he only referred to this date once in his testimony. Mr. Cooney did refer to a week passing before the decision to terminate Mr. Legere and Ms. Arnold also referred to Mr. Legere having an extended period of time to consider his future at C.J.’s. I believe this is a reference to the period Thursday, November 6 to Tuesday, November 11 certainly not Monday, November 10 to Tuesday, November 18. There was no persuasive evidence to suggest that the termination was on Tuesday, November 18.

119I also do not accept that during this period of Thursday November 7 to Tuesday November 10 Mr. Legere was defiantly refusing to work. Mr. Legere credibly suggested he was waiting to hear from Mr. Cooney or Ms. Arnold about what should occur, a conversation that did not take place until Sunday November 9.

120I find that Mr. Cooney and Ms. Arnold perceived that Mr. Legere was supportive of Ms. Staniforth and her allegations and believed that this complicated their work relationship. However, before they even had a substantive discussion with Mr. Legere about how to address this issue they terminated his contract. I am of the opinion that they believed this to be their solution to a difficult situation, even though it had a significant impact on Mr. Legere.

121Discrimination based on marital status under the Code is not limited to discrimination against someone because he or she belongs to a certain category of relationship, for example being a common law spouse. It extends to a person experiencing adverse treatment because of his or her relationship with a specific person. (B v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403, 2002 SCC 66). In this case I find that the decision to terminate Mr. Legere’s contract was not specifically based on his own conduct or behaviour but rather on the fact of his relationship with Ms. Staniforth whose behaviour was of concern to Mr. Cooney and Ms. Arnold. This constitutes discrimination under the Code.

122Both the Respondent’s counsel and the Commission did raise the issue as to whether Mr. Legere was covered by the employment provisions in section 5 of the Code given he was a self-employed contractor rather than a salaried employee of C.J.’s. However, I am satisfied that as a practical matter, Mr. Legere’s “contractor” role was, in fact, one of employment. He was assigned particular jobs by C.J.’s based on contracts the company obtained, was supervised by C.J.’s and did not, it appears, run a business in his own right. All of these indicia would suggest that Mr. Legere was an employee. (see Szabo v Poley 2007 HRTO 37).

REMEDY

123The Tribunal’s remedial powers are set out in section 45.2 of the Code:

45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

124The remedial powers are not intended to be punitive but rather to provide a remedy for victims of discrimination, to remove discriminatory barriers and policies, where applicable, and to promote future adherence to the Code. Remedies can also serve to educate the parties and the wider public.

Compensation

125Persons have the right to be free from discrimination. Monetary compensation is awarded for having lost this right, for having been discriminated against. The Tribunal’s decision in Sanford v. Koop, 2005 HRTO 53, helpfully sets out a number of factors for consideration in the awarding of damages that include the complainant’s loss of self respect and dignity and the seriousness, frequency and duration of the discriminatory treatment. In Sanford v. Koop, the Tribunal also noted that the quantum of damages should not be set too low, “since doing so would trivialize the social importance of the Code by effectively creating a ‘license fee’ to discriminate”. (para. 34).

126After careful consideration of the facts of this case I find that awarding $3,000 to Mr. Legere for monetary compensation is appropriate. He was a well regarded employee whose employment contract was unfairly terminated. Mr. Legere does share some responsibility for failing to appear as requested on Monday, November 11 but this does not justify the subsequent decision to terminate his employment.

127Pre-judgement interest is payable on this compensation from the date of the complaint. It will be calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, (the “CJA”).

Restitution

128Where a breach of the Code has been found, a complainant is entitled to restitution for monetary losses suffered as a result. In this case Mr. Legere’s contract was terminated by C.J.’s on November 11 and he was subsequently hired as a transport truck driver by another employer on December 18, 2003. Mr. Legere’s testified that he worked at least 50 hours a week for C.J.’s and earned $21.00 an hour. His job as a transport truck driver was similarly for at least 50 hours a week but paid $16 an hour. He further testified that he received no Employment Insurance benefits while unemployed as he had been a self employed contractor with C.J.’s.

129Complainants do have a duty to mitigate their losses and counsel for the Respondent challenged Mr. Legere about the fact that all of his disclosed job search documents (faxes to various transport companies) dated from December 4, several weeks after the termination of his contract with C.J.’s. Mr. Legere testified that he had been looking for work before December 4, 2003 but acknowledged that his initial job search had been briefly delayed because of his need to help Ms. Staniforth.

130I find that Mr Legere has satisfied his obligation to mitigate by actively pursuing employment opportunities in a reasonably timely fashion.

131I had before me Mr Legere’s time sheets for 18 weeks (June 26, 2003 until October 29, 2003). By my calculation Mr. Legere worked an average of 55.9 hours a week. Based on a rate of $21 an hour Mr. Legere would have earned $6,340 at C.J.’s between Tuesday November 11 and Thursday Dec 18 (based on 55.9 hours a week for 5 weeks and a further two days at 22.4 hours). It is recognized that Mr. Legere’s earned less money after December 18, 2009 than he did while working for C.J.’s ($16 and hour as opposed to $21 an hour). However, I do not know of the benefits that Mr. Legere may have received in his new job (which appeared to be as a salaried employee) and I had no arguments before me that his restitution should be for anything other than the period of his unemployment in November and December 2003. Accordingly he will be paid $6,340 in restitution.

132Pre-judgment interest is payable on the restitution. It will be calculated in accordance with section 128 of the CJA from November 29, 2003, the midpoint between when Mr. Legere’s contract was terminated and when he found new employment. Any post-judgment interest on the awards is payable pursuant to s. 129 of the CJA.

Orders for Future Compliance

133The Commission asked that Mr. Cooney attend an educational and training program facilitated by an expert on anti-harassment principles based on the Code. I do not think such an order is necessary given my findings regarding Ms Staniforth’s complaint. The Commission has also asked that C.J.’s be directed to implement an anti-discrimination policy and provide training to all staff on these policies. The circumstances of this case are quite particular and I do not think requiring C.J.’s to develop a human rights policy with training is necessary as a means of encouraging its future compliance with the Code.

Orders

134Having found that the respondents, John Cooney and C.J. Liquid Waste Haulage Ltd. violated sections 5 and section 9 of the Ontario Human Rights Code the Tribunal makes the following orders:

1. The respondents, John Cooney and C.J. Liquid Waste Haulage Ltd., shall pay the complainant, Randy Legere, the following amounts:

(a) compensation in the amount of $3,000 for the complainant’s termination

(b) pre-judgement interest on the compensation amount payable in accordance with section 128 of the Courts of Justice Act and calculated from the date of the complaint;

(c) restitution in the amount of $6,340 which represents all income the complainant would have received between November 11, 2003 and December 18, 2003 if he had not been terminated from C.J. Liquid Waste Haulage Ltd. plus pre-judgement interest on this amounts payable in accordance with section 128 of the Courts of Justice Act, from November 29, 2003 and

(d) pre-judgment interest on the restitution amount payable in accordance with section 128 of the CJA and calculated from November 29, 2003, the midpoint between when Mr. Legere’s contract was terminated and when he found new employment.

(e) any post-judgment interest on the awards is payable pursuant to s. 129 of the Courts of Justice Act.