HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dionne Newton
Applicant
-and-
City of Toronto
Respondent
DECISION
Adjudicator: Mark Hart
Indexed As: Newton v. Toronto (City)
APPEARANCES BY
Dionne Newton, Applicant ) On her own behalf
City of Toronto, Respondent ) Heather Crisp, Counsel
1This Application was filed January 21, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 29, 2007.
2The applicant alleges that she experienced a sexually poisoned work environment when she worked in the Taxi Training Unit in the Municipal Licensing & Standards Division of the City of Toronto (the “City”). She reported her concerns to management in late August 2005, and further alleges that management failed to take appropriate steps to respond to her concerns. She also alleges that she experienced reprisal for having reported her concerns.
3After not being satisfied with management’s initial response to her concerns, the applicant filed a formal complaint with the City’s Human Rights Office, which was investigated by a Senior Human Rights Consultant for the City. The Investigation Report substantiated many of the applicant’s allegations, and made recommendations for remedial action which were substantially accepted and acted upon by management.
4The applicant nonetheless alleges that the internal investigation process conducted by the City failed to fulfil the City’s responsibility to take appropriate steps to respond to her allegations, primarily in relation to issues around the preparation of her complaint and the timeliness of the completion of the investigation.
5After her initial report to management in late August 2005, the applicant went off on an extended sick leave. In circumstances to be discussed in more detail below, the applicant’s employment with the City was ultimately terminated effective November 8, 2006. The applicant alleges that the termination of her employment was a reprisal for her having raised her concerns and filed a complaint about a sexually poisoned work environment.
The Hearing Process
6The hearing in this matter took place on January 11, 2010. At the outset of the hearing, I identified that there appeared to be three primary issues in this case and I went through each issue one by one to identify what evidence I thought was required to address each issue.
7The first issue is whether the applicant experienced a sexually poisoned work environment. I noted that I had been provided with a copy of the City’s Investigation Report which found that most, but not all, of the applicant’s allegations were substantiated and assured the parties that I had reviewed this document in detail. I also noted that I was aware that the applicant had been afforded an opportunity to respond to a draft of this report before it was finalized, and that I had seen the applicant’s response which did not dispute the investigation findings.
8In light of this, I expressed the view that I did not need to hear evidence regarding the sexually poisoned work environment. I proposed to rely upon the investigation findings, and advised the parties they would be free to make submissions to me regarding the legal consequences that flow from those findings.
9I noted that I would, however, need to hear evidence from the parties regarding the remedy sought by the applicant arising out of the investigation findings, which includes her claims for lost income and general damages.
10The second issue is whether the City responded appropriately to the allegations raised by the applicant. I broke this issue down into two parts. The first part of this issue relates to the City’s initial response when the applicant’s concerns were first raised in late August 2005. I noted that the issue of the City’s initial response had been addressed in the Investigation Report, and I proposed to rely upon the findings in the Report and stated that I didn’t believe I that I needed to hear evidence on this.
11The second part of the City’s response relates to the investigation itself and the response to the Investigation Report’s recommendations. I stated that I believed that the evidence relating to this issue was adequately addressed in the documents filed by the parties which I already had reviewed, and stated that I did not think I needed to hear further evidence on this issue, perhaps with the exception of evidence regarding the two recommendations that were not fully accepted by management. I proposed that the parties simply make submissions based upon the material filed.
12The third issue is whether the applicant experienced reprisal as a result of raising her concerns and/or making her complaint. Once again, I indicated that I saw two aspects to the reprisal issue. The first relates to reprisals alleged to have been experienced in the workplace prior to the applicant going off on leave, and this too is addressed in the Investigation Report. Once again, I proposed to rely upon the findings in that Report and stated that I did not believe I needed to hear evidence on this part of the issue.
13The second aspect of the reprisal issue relates to the termination of the applicant’s employment and the sequence of events that led up to that, and I indicated that I did need to hear evidence on that issue, although I did not think I needed to hear a lot of evidence as much of what happened during this period had been documented.
14In terms of the hearing process, I proposed to take the lead in questioning the witnesses. I proposed to begin by questioning the applicant to obtain her evidence in relation to the events leading up to the termination of her employment and relevant to the remedy she is seeking and I also proposed to question the applicant’s mother for any supporting evidence in terms of the impact on the applicant. After this, I proposed to question the respondent’s witnesses to obtain their evidence in response, and then go back to the applicant to hear any further evidence from her arising out of the respondent’s evidence.
15At each point, before I started questioning a new person, I would ask the parties to advise whether they wanted me to ask any further questions of the witness to clarify any matters that I had touched upon. And, before concluding the proceeding, I proposed to afford the parties the opportunity to cross-examine opposing witnesses, provided that this did not repeat evidence that I had already heard. After that, I would hear final submissions from the parties. I also proposed that I would be able rely on evidence from any of the material filed with the Tribunal, whether or not it was addressed in evidence given before me at the hearing.
16I invited submissions from the parties regarding my identification of the issues in this proceeding, the evidence that I believed I needed to hear, and the proposed hearing process. All parties agreed with my identification of the issues and evidence I needed to hear, and consented to the proposed hearing process.
Allegations of a Sexually Poisoned Work Environment
17The Investigation Report reached the following conclusion about the work environment where the applicant was employed:
The evidence substantiates many of the allegations. The evidence indicates that there was inappropriate sexual comments, jokes and innuendos that were regularly heard in the workplace such as comments about how long its been since someone has had sex, “it’s raining outside, we can have a wet t-shirt contest”, jokes and conversations about oral sex, referring to the back of a bra strap as “nipples on your back”, and creating an ad for a bikini car wash on Knocker Drive in Hooterville for a training assignment. There was also inappropriate physical touching such as tickling and lap sitting.
This behaviour was engaged in by many staff, not only the named respondents [to the applicant’s internal complaint]. The work environment was sexualized and this atmosphere had to be tolerated by staff as a condition of work. Although this is not the most egregious behaviour on the harassment scale, it does constitute a poisoned work environment which is a form of harassment and is contrary to both the Ontario Human Rights Code and the City’s Human Rights and Harassment Policy.
18In terms of the specific allegations raised by the applicant in her internal complaint, the applicant stated that on August 23, 2005, she found a typed, transparent note left on the partition for her work station which read, “I want to have sex with you”. While the investigation was unable to identify who was responsible for this note, the Investigation Report found that “this kind of joke is inappropriate for an office and constitutes both harassment of the [applicant] and contributes to a poisoned work environment”. The Report further found that the evidence substantiated that the applicant was very upset about the note, and that the finding of this note precipitated her complaint to management the following week.
19The Investigation Report also substantiated the applicant’s allegations that a male co-worker made comments about how long it had been since he had sex, that he said “it’s raining outside, we can have a wet t-shirt contest”, that he put his hand over a female co-worker’s mouth and kissed his hand, that he made a joke about oral sex, that he made a comment about a female co-worker having “nipples on her back” in reference to bumps on the back of her bra strap, that he drew a diagram of male genitals on a colleague’s computer during training, and that he made comments that the applicant should wear high heels and a short skirt.
20The Investigation Report further substantiated that this same male co-worker engaged in tickling or attempts to tickle the applicant and other female co-workers, although the Report also indicated that the applicant engaged in reciprocal behaviour of poking this male co-worker. The Report finds that as time progressed, the applicant became increasingly uncomfortable with this behaviour by the male co-worker, and on at least one occasion told him to stop poking her. The Report finds that it is likely that on an occasion in the summer of 2005, this male-co-worker came from behind and grabbed the side of the applicant’s waist and that she used her hand to push him away; that at a barbeque that summer this male co-worker also came from behind and touched the side of the applicant’s waist; that in August 2005, this male co-worker walked behind the applicant and leaned over to touch the side of her waist; and that at training that same month, this male co-worker leaned into the applicant. None of this behaviour was welcomed by the applicant, and the Report finds that this was inappropriate workplace behaviour and contributed to the poisoned environment.
21At the same time, there were specific allegations against this male co-worker that the Investigation Report found had not been substantiated. The applicant alleged that this male co-worker said to her “I know you want to have sex with me”, that he said “your breasts are firm”, and that when they were together in a room after others had left he said “good we’re alone”. The Report found that there was insufficient evidence to support these allegations, and generally found that there was little evidence that this male co-worker expressly targeted the applicant as opposed to engaging generally in inappropriate workplace behaviour with female staff.
22The applicant also made allegations about a second male co-worker, some of which were substantiated by the investigation. The Investigation Report found that this male co-worker created an ad for a bikini car wash at a training session attended by the applicant, with the address being “Knocker Drive” in “Hooterville”. The Report quite properly finds that this was not professional or appropriate, it objectified women and contributed to a sexualized atmosphere and a poisoned work environment. The Report also found that this male co-worker: participated in a discussion that the applicant should wear high heels and a short skirt; initiated attempts to tie the stem of a cherry in his mouth at a lunch attended by the applicant, which could be viewed as having a sexual connotation and which likely resulted in sexual comments by others at the lunch; and likely did something with a napkin in his lap that could be interpreted as sexual. The Report found that this conduct was inappropriate and contributed to a poisoned work environment.
23On the basis of the findings as set out in the Investigation Report, I have no hesitation in finding that the applicant was subjected to a sexually poisoned work environment contrary to s. 5(1) of the Code. As this conduct was engaged in by City employees, the City is deemed to be liable for this violation of the Code pursuant to s. 46.3 of the Code.
Response to the Applicant’s Concerns
The Co-ordinator’s Response
24The Investigation Report finds that on Sunday, August 28, 2005, the applicant contacted the Co-ordinator of Taxi Training about finding an offensive and upsetting note at her work station and that they agreed to discuss the issue in more detail the next day at work. The applicant told the Co-ordinator that she was also going to call the Manager, and that she wanted to meet with both the Co-ordinator and the Manager first thing on the following morning to discuss her concerns.
25On Monday, August 29, 2005, at around 8:30 a.m., the applicant went to the Co-ordinator’s office to see whether the Manager was coming in to work that day. The Manager had not returned the applicant’s phone call from the previous day, likely because he had left his cellphone in another employee’s car. The applicant continued to go to the Co-ordinator’s office that morning to see if the Co-ordinator had heard anything from the Manager, ultimately finding out around noon that day that the Manager had called in sick.
26The Co-ordinator asked the applicant what she wanted to do, and she decided to speak to the Co-ordinator without the Manager being in attendance. The applicant showed the Co-ordinator the note that had been left in her office, and they both agreed that the lettering looked like it had been made using the office label maker. The applicant also raised general concerns about sexual comments at training and in the workplace, but did not provide details.
27The applicant and the Co-ordinator also discussed confidentiality. The Co-ordinator states that he assured the applicant that he would keep her confidentiality and that he would speak to the Manager to look into the issue. As the applicant was upset, the Co-ordinator sent her home early that day. The Investigation Report finds that the Co-ordinator made himself available to meet with the applicant, discussed her concerns, offered support and discussed next steps. As this individual had only been in the role for about five months at that point, the Report finds that it was reasonable for the Co-ordinator to wait until the next day to take further action.
28However, the Investigation Report finds that the applicant provided the name of at least one other female co-worker who was uncomfortable with the sexual comments in the office, but that the Co-ordinator failed to follow up with this individual. The Report finds that the Co-ordinator should have taken action in light of this information, such as following up with the individual or discussing the matter with the Manager.
29The Investigation Report further finds that the Co-ordinator likely was aware in general of the types of sexual comments that the applicant was concerned about, based upon evidence from witnesses interviewed during the investigation and the Co-ordinator’s prior role as a trainer in the Unit. The Investigation Report also finds that the Co-ordinator was present at the lunch where the “cherry-tying” incident took place and that it is likely that he observed this incident. While the Report finds that the cherry-tying itself did not provide a reasonable basis to require action by the Co-ordinator, it is noted that there were sexual comments made at this lunch which, if heard by the Co-ordinator, should have prompted him to take some action.
30On Tuesday, August 30, 2005, the applicant arrived at work at 8:30 a.m. and the Co-ordinator and the Manager were already in the office. Shortly after she arrived, the applicant asked the Co-ordinator whether he had spoken to the Manager about her concerns, and he said he hadn’t yet. The Co-ordinator states that he was waiting until 9:00 a.m. to raise this issue with the Manager, as morning training starts at that time and the first half hour at work is the only opportunity the trainers have to speak with the Manager. The applicant advised the Co-ordinator that she would speak to the Manager herself.
31The Investigation Report finds that additional action could have been taken by the Co-ordinator, given the explicit nature of the note and how upset the applicant was the previous day. The Report finds that it would have been appropriate for the Co-ordinator at least to have advised the Manager either by voicemail or e-mail that they had to discuss something important that morning, even if other staff were in the Manager’s office. However, the Report finds that there was no delay resulting from this, as the applicant’s concerns were addressed with the Manager that morning.
32The Report concludes that when the applicant’s specific concern was brought to the Co-ordinator’s attention, he spoke to her immediately when she phoned him on the weekend, he met with her the next day in the office to hear her concerns and discuss remedies, he allowed her to leave early when she was upset, and he agreed to meet with the Manager to discuss her complaint. The Report finds that these actions demonstrate that the Co-ordinator met his obligations as a supervisor to respond to human rights complaints.
33However, the Report was nonetheless critical of the Co-ordinator’s failure to take certain additional steps, such as not being more pro-active in eliciting specific details from the applicant, not following up with the other female employee identified by the applicant, and not leaving a message for the Manager to alert him that there was an issue. The Report further finds that it is likely that the Co-ordinator was aware of some of the sexualized behaviour that went on in the workplace, and that as a member of management, he is responsible to ensure a harassment free work environment even if no explicit concerns are raised. The Report notes that the Co-ordinator took the City’s half-day course on “Managing Human Rights in the Workplace” in May 2005.
34On the basis of the evidence and findings as set out in the Investigation Report, I find that the Co-ordinator did not fail in his obligation to respond appropriately to the applicant’s concerns, and I find no basis to support any finding of a violation of the Code in relation to the Co-ordinator’s conduct.
The Manager’s Response
35As indicated above, after speaking with the Co-ordinator on Sunday, August 28, 2005, the applicant left a message on the Manager’s cell phone stating that she needed to speak with him about an urgent matter. Because the Manager’s cell phone had been left in another employee’s car and because he was sick on the following day, the Manager did not actually pick up this message until after he had already spoken with the applicant on the morning of August 30, 2005.
36After speaking briefly with the Co-ordinator on Tuesday, August 30, 2005, the applicant approached the Manager directly and spoke with him in his office. The applicant told the Manager about the note stating “I want to have sex with you” and how she had found it. The evidence indicates that the applicant was noticeably upset and had a difficult time making eye contact with the Manager. The evidence indicates that the applicant also told the Manager about her concerns regarding male co-workers making inappropriate comments with sexual innuendos in the office and at lunch outside the office.
37The Investigation Report finds that it is likely that the Manager was aware of some of the sexual comments, innuendos and physical jesting that took place in the office. While the Report notes that at the time, staff felt that the comments and conduct were welcomed by all who participated and no one had indicated offence and while most witnesses stated that there would not have been any reason to believe that these comments and conduct were upsetting or offending anyone specifically, it nonetheless is management’s responsibility to set standards and ensure a harassment free workplace even if no one complains.
38The Manager asked the applicant to name the people that she was concerned about, and the applicant was reluctant to provide specific names. However, after discussing confidentiality and an agreement by the Manager that he would not tell the alleged offenders who had raised the concerns, the applicant identified the two male co-workers. The evidence indicates that the applicant mentioned sexual conversations engaged in by one of these male co-workers, but she did not provide specifics. The evidence also indicates that the applicant made reference to tickling by the other male co-worker. The Manager states that he said that he knew that this male co-worker touches other staff, and he asked whether the applicant had said anything to this individual. The Report finds that the applicant also raised the issue about this male co-worker telling a joke about oral sex in front of her.
39The Report finds that it is likely that the applicant raised with the Manager the idea of dealing with this issue at a staff meeting, to discuss what behaviour is acceptable and not acceptable in the office and to set limits and boundaries in the office. However, because of the seriousness of the allegations, the Manager stated that he needed to address the two individuals directly, and the applicant consented to this.
40The Manager then met with staff identified by the applicant, and thereafter met with the applicant to wrap up. The Manager asked the applicant to meet him in one of the boardrooms that afternoon. When the applicant arrived, one of the male co-workers she had identified was in the boardroom talking on his cell phone. This individual left when advised by the applicant that she was there for a meeting with the Manager.
41The Manager told the applicant about the response of one of the male co-workers to her complaint. The applicant states that she was told that this individual tickled her because she poked him. The Manager states that he told her that this individual had said that the applicant poked him, and that he asked the applicant if this was true. The applicant states that the Manager also said that this individual stated that she had taken the “blow job” joke out of context and that it wasn’t directed towards her.
42The Report finds that the applicant raised the issue of confidentiality with the Manager, but that the evidence supports that the Manager did not tell staff who had complained. Nonetheless, given the nature of the allegations raised, it is inevitable that this individual would infer who was the source of the concerns.
43The Manager asked the applicant if she wanted the male co-worker to come in to the boardroom to resolve the matter, and she agreed. The Manager told both the applicant and the male co-worker that touching of any kind was inappropriate, and that the poking and tickling was to stop. The Investigation Report finds that the Manager likely stated to the applicant, “You get what you put out”, in reference to her poking this male co-worker. On this basis, the Report finds that it was reasonable for the applicant to feel that the Manager blamed her for the tickling situation, and finds that this did not fulfil management’s responsibility in managing a harassment complaint.
44The male co-worker also stated to the applicant that he did not write the note that she had found in her work station. The applicant states that she had never alleged that this individual had written the note. In the meeting, the Manager said, “You cannot assume a man wrote the note, a woman could have written the note”. The Manager states that he made this comment in the context of explaining that he probably would not be able to find out who wrote the note, because no one was going to admit to it. The Manager acknowledged that he did not do any follow-up exploration of the note with staff. The Report finds that the Manager did not take sufficient action regarding the note, as there was no follow-up to all staff to explore who had put the note in the applicant’s work station or to communicate that the note was inappropriate. The Report further finds that the Manager’s statement “You cannot assume a man wrote the note, a woman could have written the note” and the lack of follow-up contributed to the applicant’s perception that her complaint was not taken seriously.
45The Manager told the applicant that he was going to provide sensitivity training and have someone talk to all staff. During the investigation, the Manager advised that he already had been in discussions with Human Resources about getting human rights training for staff, but wanted to wait until new staff were hired first. He later advised that there would not be any Unit-specific training, but that most staff had registered for human rights training offered through the City’s corporate calendar.
46The applicant asked the Manager whether he was going to mention her name to the other male co-worker, and the Manager said he wouldn’t. The Manager says that he told the applicant that he would advise this individual that comments with derogatory and sexual connotations were inappropriate in the office. The evidence indicates that when the Manager met with this second male co-worker, this individual had already heard that the applicant had complained. While the Report finds that the Manager did address the applicant’s concerns with this second male co-worker, the evidence does not support that the Manager followed up with the applicant on this, and if he did, any such follow-up was not documented and it should have been. The Report also finds that the Manager inappropriately mentioned the name of the second male co-worker in front of the first male co-worker and did not discuss confidentiality with the latter individual, with the result that the first male co-worker talked to the second before the Manager could speak with him. The Report also finds that the second male co-worker understood the Manager to be telling him to be careful who he says things in front of, not that sexual comments are not appropriate for the workplace.
47The applicant states that she did not feel that the Manager was taking her concerns seriously when he said that he would be making his own notes of the issue but nothing would be put on the applicant’s or the co-worker’s records and that there would be no formal complaint or investigation. The Investigation Report finds that the applicant’s initial request was to have her concerns dealt with generally at a staff meetings, and she did not request a formal investigation. The Report finds that the Manager did follow up with the two identified individuals, but states again that insufficient follow-up was conducted on the sexual note.
48On the evening of Tuesday, August 30, 2005, the Manager sent an e-mail to the applicant requesting the original copy of the sexual note. When the applicant failed to reply, the Manager approached her at her desk the following day and repeated his request. The applicant said that she would bring in the original copy of the note to show the Manager, and would give the Manager a photocopy of the note. The Manager reiterated that he wanted to keep the original copy of the note and that the applicant could keep a copy for herself. The Investigation Report finds that the Manager reacted angrily when the applicant became argumentative about the note, that he did not explain his reasoning for wanting the original copy of the note, and that he did not explore the applicant’s concerns for not wanting to give him the original. As a result, the Report finds that it was not unreasonable for the applicant to feel intimidated by the Manager in this situation.
49The applicant states that she feels that her privacy was not respected and confidentiality was breached when on Wednesday, August 31, 2005 several co-workers refused to talk with her and gave her the cold shoulder. Further, she says that one person walked by her work station and said out loud in a mocking tone, “[name of male co-worker] watch your language”. The Manager acknowledges that on this day, a staff member came into his office upset and talked about the concerns raised by the applicant, stating that she had seen the applicant poke this male co-worker all the time.
50The Investigation Report indicates that most witnesses reported knowing about the complaint at the time, including details such as when and to whom the applicant first raised her concerns, that the three main complaints were about sexual comments, tickling and the sexual note, and that the applicant had met with one respondent who had apologized to her. The Report indicates that some witnesses wrongly understood that the applicant had alleged that one of the male co-workers had sent the sexual note, and these witnesses were upset about this allegation and felt that this individual had been wronged by the applicant. The Report indicates that the staff member acknowledges making the comment “watch your language”, and that other witnesses verified hearing people say “watch what you say”, “might offend someone”, “sorry if that offended anyone” and some witnesses felt that the comments were sarcastic or a big joke.
51The Report also indicated that a number of witnesses felt betrayed by the applicant for complaining to management first without talking to them or the people she felt harassed her to give them a chance to respond and change. Witnesses said that all staff, including the applicant, had participated in the joking and it was unfair that only two people had been targeted.
52The Report finds that this behaviour constitutes a reprisal which is a violation of the City’s Policy, and further notes that when dealing with a harassment complaint, management should take steps to minimize any reprisals.
53The applicant states that on Wednesday, August 31, 2005, before leaving on his vacation, the Manager said to all staff “don’t behave badly now”. The Report finds that the evidence does not indicate that the Manager said this to mock, however the applicant’s perception that this was a mocking comment was not unreasonable in light of the negative behaviour that she was experiencing from colleagues.
54The applicant went off on sick leave the following day and has not returned to the workplace since then.
55The Investigation Report finds that the applicant’s complaint was taken seriously by the Manager by dealing with two of the issues in a timely manner:
He met with the applicant right when she approached him;
He met with the two colleagues who the applicant had identified as engaging in inappropriate behaviour that same day;
He communicated to one colleague that tickling was not appropriate work behaviour; and
He communicated to the other colleague that he needed to be careful about his sexual comments.
56However, the Report also finds that there were a number of “gaps” in the Manager’s response to the applicant’s concerns:
His telling the applicant that she can’t assume it’s a man who wrote the note does not address the fact that the label was inappropriate and very upsetting to her;
No follow-up action was taken on the sexual note to try to identify the author or to communicate to the rest of the staff that such behaviour constitutes harassment;
Confidentiality was not respected by discussing the name of the second male co-worker in front of the first, by confirming who had complained after agreeing with the applicant to maintain confidentiality, and by allowing other staff to vent about the applicant without addressing confidentiality issues;
His not eliciting specific details regarding the applicant’s concerns about “sexual conversations” meant the complaint could not be fully assessed and addressed;
The manner in which he communicated with the applicant led her to feel blamed for some of the inappropriate behaviour;
No action was taken to address staff’s anger about the complaint so as to minimize or prevent reprisals;
He was likely aware that sexual comments and jokes were being said in the workplace and there was no communication to staff about appropriate workplace behaviour; and
There was no follow-up discussion with the office as a whole about appropriate office behaviour.
57In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, this Tribunal found that a respondent owes a duty to reasonably and adequately respond to an alleged violation of the Code and set out the following three criteria whereby the reasonableness and adequacy of the respondent’s response will be assessed (at para. 59):
(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
58The Tribunal also stated the following (at para. 60):
While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.
59In assessing the Manager’s response to the applicant’s concerns, I agree with the finding in the Investigation Report that he did take the applicant’s concerns seriously and addressed them in a timely manner by taking certain steps. However, I also agree with the identification of “gaps” in the Manager’s response as identified in the Investigation Report.
60In relation to the criteria set out in Laskowska, supra, I find that the Manager did not “reasonably investigate and act”: when he failed to take any follow-up action on the sexual note to try to identify the author or to communicate to the rest of the staff that such behaviour constitutes harassment; by not eliciting specific details regarding the applicant’s concerns about “sexual conversations” which meant the complaint could not be fully assessed and addressed; and by not conducting any follow-up discussion with the office as a whole about appropriate office behaviour.
61I further find that the Manager failed to deal with the matter sensitively: by telling the applicant that she can’t assume it’s a man who wrote the note, as this did not address the fact that the label was inappropriate and very upsetting to her; by not respecting confidentiality or taking sufficient steps to ensure that confidentiality was respected; and in the manner in which he communicated with the applicant, which led her to feel blamed for some of the inappropriate behaviour.
62I further find that the Manager failed to provide a healthy, discrimination-free work environment as a consequence of his likely awareness that sexual comments and jokes were being said in the workplace and his failure to communicate to staff about appropriate workplace behaviour, and by his failure to take any action to address staff’s anger about the complaint so as to minimize or prevent reprisals.
63While I appreciate and agree with the comments in Laskowska, supra about not holding someone to a standard of perfection, I nonetheless find that as a result of the deficiencies in the Manager’s response to the applicant’s concerns, he fell sufficiently below the standard of a reasonable and adequate response to justify a finding that his response failed to satisfy his obligation under the Code. Once again, as the City is deemed to be liable for the conduct of its employees, I find the City to be liable for the Manager’s failure to satisfy this obligation.
Human Resources’ response
64On September 19, 2005, two individuals from the City’s Human Resources department, one of whom worked in Labour Relations (who is no longer a City employee and did not testify before me) and the other who was a Disability Management Consultant (who did testify), attended at the office where the applicant had worked to interview various employees. The Disability Management Consultant states that he attended the interviews solely to take notes. He states that the purpose of these interviews, according to the individual who worked in Labour Relations, was to get the “lay of the land” in this office in response to a labour relations issue that had been raised by the Manager. In this regard, I note that the Manager had been contacted by the applicant’s union representative on September 14, 2005 and advised that she was off on stress leave due to workplace harassment and would be making a WSIB claim.
65Eleven employees were interviewed as part of this exercise, including the two male co-workers about whom the applicant had complained. The questions asked only related to the general office environment, and no questions were asked relating to any specific incidents or allegations raised by the applicant. The Disability Management Consultant states that he did not even know the name of the person who had complained. The Disability Management Consultant states that the applicant’s name was not raised by any of the interviewees, and did not come up at all during the course of the day they were there. The Disability Management Consultant does not know why the applicant was not interviewed as part of this exercise.
66The Disability Management Consultant states that, from the questions answered by the interviewees, it seemed like it was a workplace where the employees didn’t think there was any issue. Nonetheless, the two Human Resources representatives attended a meeting with the Manager about a week later to discuss the results of the interviews and the potential for sensitivity-type training. The Disability Management Consultant recalls that the Manager was open to training, but doesn’t know where it went from there.
67The evidence indicates that the applicant had contacted the acting Human Resources Manager for the Division and had been referred to the City’s Human Rights Office so that she could file a complaint about workplace harassment. The applicant’s initial contact with the City’s Human Rights Office was in early September 2005 and she met with the Senior Human Rights Consultant about her complaint on September 22, 2005.
68On September 23, 2005, the applicant was contacted by the Senior Human Rights Consultant and informed about the visit by Human Resources to her workplace. The applicant states that she was told that “no one expressed any concerns”. The applicant informed the Senior Human Rights Consultant that she still wanted to go ahead with her complaint. The applicant states that she subsequently spoke with a person who had been interviewed by Human Resources on September 19, 2005, who said that she had told the Human Resources representatives that employees in the Unit do get out of hand and get too personal and that she walks away when they talk about sex. This individual told the applicant that another employee had told Human Resources something similar.
69The Senior Human Rights Consultant testified that she knew that an investigation had been conducted by Human Resources, and she needed to know whether the applicant’s concerns had been adequately addressed through that process. She states that the outcome of the Human Resources investigation was that there were no huge issues and there was going to be training. So she contacted the applicant to inform her of this, and the applicant decided that this didn’t address her concerns. As a result, the formal complaint proceeded.
70The Senior Human Rights Consultant candidly acknowledged that she agreed with the applicant that the Human Resources investigation hadn’t addressed all of her concerns. She states that the Human Rights Office exercises a discretion whether to proceed with a formal complaint, and if they assess that in fact adequate steps already had been taken to address the concerns and there would be no additional benefit to the Human Rights Office being involved, then that is the information that would be communicated back to the employee.
71In this particular case, the Human Rights Office was of the view that the Human Resources investigation was not adequate for a number of reasons. First, the questions asked were more generic, in terms of the general work environment, whereas the applicant’s concerns were much more specific; although in fairness, the Senior Human Rights Consultant notes that there were a number of additional issues raised in the formal investigation process that hadn’t been raised initially to management. The Human Rights Office also was concerned about the failure to interview the applicant as part of the Human Resources process.
72Second, one of the concerns that came forward to the Human Rights Office was that when concerns were initially raised by the applicant, she felt that the actions taken in response were not appropriate. This issue wasn’t the subject of the Human Resources investigation, and is a legitimate basis for the Human Rights Office to get involved.
73Finally, the Senior Human Rights Consultant also noted that when she gave feedback to the applicant about the Human Resources interviews, some of the employees that the applicant had spoken to were telling her different things than what had been reported back as the overall outcome. That was another reason that it was felt that the involvement of Human Rights Office was appropriate, and was something that needed to be further explored.
74The issue for me is whether the intervention by Human Resources constitutes a reasonable and adequate response to the applicant’s concerns in accordance with the City’s obligations under the Code. Having regard to the criteria set out in Laskowska, supra, I do not believe that it does. In particular, I find that the Human Resources intervention did not fulfil the obligation to “reasonably investigate and act” due to the deficiencies identified by the Human Rights Office. In particular, I note the failure to ask questions related to the applicant’s specific allegations and the failure to interview the applicant as part of the process, and yet with the reported conclusion that there were no issues in this workplace. In my view, this intervention falls far short of the kind of response required to satisfy the obligation to take reasonable steps in response to an allegation of a Code violation, and supports a further basis upon which I find the City to be liable under the Code.
The Response by the Human Rights Office
75There are two bases upon which the applicant takes issue with the investigation of her complaint conducted by the City’s Human Rights Office. She first states that the Human Rights Office deleted and altered statements from her complaint and that the initial complaint as prepared by that Office did not fully set out all of her allegations. She states that in the process of taking the raw information that she was providing and putting it into the complaint, some of the information was being deleted. The applicant states that she was told that some of the information didn’t fit into context or was irrelevant, but the applicant felt that these were her statements and that the role of the Human Rights Office was to investigate her statements. In particular, the applicant states that allegations related to the Manager were being deleted and it took the applicant hours to put back what she had originally put in. The applicant states that this continued until November 7, 2005 when she asked to have her meeting with the Human Rights Office tape recorded, and that this was when she got all of the events included in her complaint.
76The Senior Human Rights Consultant states that, as a matter of practice, she asks complainants to provide a written complaint and documentation or a chronology, and this material always contains more information than normally is shared with respondents. The practice of the Human Rights Office is to try to limit the formal complaint to just the allegations, so that surrounding evidence, witness names and some of the narrative leading up to the allegations does not get included in the complaint. This witness states that the rest of information provided by a complainant would be considered in reviewing the allegations.
77The Senior Human Rights Consultant states that the applicant disagreed with that approach, and was concerned that a lot of information was being taken out of her complaint. This witness states that she did her best to try to explain why she was doing what she was doing with the complaint, but the applicant was not accepting this and felt very strongly about it. As a result, this witness felt that in order to move forward and so that the applicant didn’t feel that her complaint was being cut off by the Human Rights Office, she did include all of the applicant’s information in the complaint and dealt with it through the process.
78I have reviewed the documentation provided by the applicant in relation to the preparation of her formal complaint by the Human Rights Office. Detailed information was provided by the applicant to the Human Rights Office at a meeting on September 22, 2005. The applicant followed up by e-mail with a further document on October 6, 2005 containing her description of the incidents. On October 12, 2005, the Human Rights Office responded with a draft formal complaint which was sent to the applicant for review. Consistent with the evidence of the Senior Human Rights Consultant, the formal complaint focuses on the allegations against each respondent which may be in violation of the City’s Policy or the Code. Contrary to the applicant’s evidence, while not all information provided by her regarding her interactions with the Manager was included in the draft complaint, the complaint clearly does include her allegations against the Manager.
79Further comments on the draft complaint were provided by the applicant on October 14, 2005 and a meeting was held on October 18, 2005 to review and sign the complaint. The applicant was still not satisfied with the complaint, and provided the material that she wanted to be included in the complaint by e-mail on October 28, 2005. This resulted in a further draft being prepared by the Human Rights Office and sent to the applicant on November 1, 2005, which ultimately led to the signing of the final complaint on November 7, 2005.
80In reviewing this material, it strikes me that the principal difference between the perspective of the Human Rights Office as contrasted with the applicant, is that the Human Rights Office wanted the complaint simply to focus on the alleged Policy and Code violations whereas the applicant wanted the complaint also to include more of the factual and contextual narrative. In my view, these are both valid perspectives. I understand the interest of the Human Rights Office in wanting to keep the complaint focused on the alleged violations, in order to provide clarity to the respondents and for the purpose of the investigation as to what specific conduct was at issue. At the same time, I do not discount the applicant’s interest in wanting to include more of the context, which sometimes can be helpful to a full understanding of the allegations. However, while I accept that there is some validity to the applicant’s perspective on this issue, the fact that I find that the perspective of the Human Rights Office also has validity combined with the fact that the final complaint ultimately was prepared in accordance with the applicant’s witnesses causes me to conclude that no violation of the Code arises from this difference in perspective.
81The second basis upon which the applicant takes issue with the investigation conducted by the Human Rights Office relates to the amount of time it took to complete the process, and particularly that the time required to complete the process exceeded the six months for completion of a human rights investigation set out in the City’s internal policy. I need to be clear that the issue for me is not whether the investigation was completed in accordance with the City’s internal policy. The only issue within my jurisdiction is whether the time required to complete the investigation constitutes a failure to address the applicant’s allegations “promptly” as part of my assessment as to whether the response of the Human Rights Office failed to fulfil the obligation to respond reasonably and adequately to allegations of a Code violation.
82As stated above, the formal complaint was ultimately signed on November 7, 2005 and identified five respondents. Each of these respondents needed to be given notice of the allegations and an opportunity to respond. In addition, interviews were conducted with 19 employees including the applicant, the five respondents and 13 witnesses. From the Investigation Report, it appears that at least some of these individuals were re-interviewed in light of additional information that came forward during the investigation. Following this, the Investigation Report was prepared, which is a 72 page, single-spaced document. The date of this document is April 20, 2006, which is about five and a half months after the formal complaint was signed.
83In my view, this is not an unreasonable length of time to complete an investigation of this nature, given the number of respondents identified and witnesses involved and given the scope of the allegations. The investigation conducted was exceedingly thorough, and the Investigation Report is a comprehensive and detailed document. The Report appropriately addresses each of the applicant’s allegations, and reviews each respondent’s response and the witness evidence relating to each allegation before making a finding. The findings made are consistent with the evidence obtained during the investigation, and the Report makes assessments of credibility on the basis of the correct legal standard of proof on a balance of probabilities or what is more likely to have occurred. In many ways the Investigation Report is a courageous document to have been prepared by someone who is a City employee, as it not only identifies inappropriate conduct by employees but also takes clear issue with the response by management to the concerns raised by the applicant. In my view, the Senior Human Rights Consultant is to be commended for the quality and thoroughness of her investigation and report.
84The Investigation Report was released to the applicant and appropriate portions of the Report were provided to the respondents, so that they could comment on the Report and findings. A full copy of the Report also was provided to the Executive Director of the Municipal Licensing & Standards Division. After comments were received from the parties, the Senior Human Rights Consultant provided a final report to the Executive Director on May 11, 2006, which reviewed and responded to the comments from the parties and included her recommendations. In my view, the recommendations made were commensurate with the findings of the Investigation Report and were appropriate and measured.
85Management responded to the recommendations by letter dated July 5, 2006, which were substantially adopted. Management agreed that all staff in the Unit would receive human rights training within the next 12 months, and that a detailed de-brief would be provided for all staff with a view to providing closure to the investigation, including a facilitated discussion of the general issues raised through the investigation, with a focus on appropriate workplace standards, intent versus effect of behaviours, and creating a respectful workplace.
86The Human Rights Office also recommended that a human rights objective be included in the Manager’s performance planner to track his demonstration of leadership in the human rights area and how he would proactively engage with staff to be aware of workplace behaviour and reinforce appropriate workplace standards. This recommendation was accepted in principle, as the Division was in the process of developing a competency-based performance development system that would apply to all of its managers, including the Manager at issue. This performance development system included assessment of competencies in leadership, team work and developing others. I heard evidence from the Director of Licensing Services that the performance development system also includes a competency in communication with staff. The Director also testified that as part of the performance review process, he has had occasion to discuss with the Manager issues relating to human rights and workplace conduct, and his assessment is that the Manager is doing well on those issues.
87The Human Rights Office further recommended that sensitivity and/or communication training be provided for the Manager, with a goal of having him understand his role in the applicant’s concerns. This was a significant recommendation, as the Manager had expressed resistance to accepting his responsibility and the gaps identified in his response to the applicant’s concerns both during the investigation and in response to the Report and its findings. This recommendation also was accepted in principle, in that management was in the process of implementing monthly meetings for all management staff, which would include sessions on a variety of topics including human rights. I also heard evidence that the Manager had taken human rights training, and that, in 2007, a two day team-building session was conducted for the Unit, which included a section on appropriate workplace communication.
88What did not happen in response to the recommendations made by the Human Rights Office is that no steps were taken by management to bring home to the Manager his role and responsibility in relation to the concerns raised by the applicant and the findings from the investigation. In my view, this was an important and appropriate recommendation for the Human Rights Office to make in light of its findings, and should have been accepted and acted upon by management. Given the specific deficiencies in the Manager’s response as identified through the investigation, in my view it was important for City management to bring home to the Manager that it supported these findings, to confirm the deficiencies in his response, and to communicate the clear expectation for positive change, regardless of the Manager’s own personal views. However, at this point, given that it has been over four years since the events at issue, I do not see what purpose would be served in engaging in this exercise now, and I will not make an order requiring the City to do this.
89Overall, while I am critical of the response by City management to one of the recommendations made by the Human Rights Office, I find that the investigation conducted by the Human Rights Office and the City’s response to the recommendations fulfilled the City’s duty to take reasonable and adequate steps in response to the applicant’s complaint, and I find no violation of the Code in this regard.
Reprisal Allegations
In the workplace
90As discussed above, the applicant alleges reprisal in relation to how she was treated in the workplace on Wednesday, August 31, 2005. She states that several co-workers refused to talk with her and gave her the cold shoulder, and that one person walked by her work station and said out loud in a mocking tone, “[name of male co-worker] watch your language”.
91The Investigation Report indicates that most witnesses knew about the applicant’s complaint and were upset with her for raising these allegations with management. The Report finds that comments were made such as “watch your language”, “watch what you say”, “might offend someone”, “sorry if that offended anyone”, and that some witnesses felt that these comments were sarcastic or a big joke.
92The Report finds that this behaviour constitutes a reprisal in violation of the City’s Policy. I concur with this finding, and find that this conduct also constitutes reprisal in violation of s. 8 of the Code.
93With regard to the Manager’s comment at the end of the day where he said, “don’t behave badly now”, while the applicant’s perception that this was a mocking comment may not have been unreasonable, the Report finds that the evidence does not indicate that the Manager said this to mock the applicant. As a result, there is no basis to find that this comment forms part of the reprisal experienced by the applicant in the workplace that day.
Termination of the Applicant’s Employment
94As noted previously, the applicant went off on sick leave effective September 1, 2005. On September 14, 2005, the Manager was contacted by the applicant’s union representative taking the position that the applicant should be recorded as being on a Workplace Safety and Insurance Board (“WSIB”) leave for stress as of September 1, 2005. This was followed by a medical note dated September 20, 2005 stating that the applicant was off on stress leave until further notice as a result of a “work situation”.
95On September 20, 2005, the City filed an Employer’s Report of Injury/Disease with the WSIB, objecting to the claim on the basis that all staff involved felt that the issues had been dealt with and resolved.
96On September 23, 2005, the applicant was contacted by Human Resources and offered a modified job and change of location. By letter that same day, she was provided with a Return to Work form and asked to have this form completed by her doctor.
97While the applicant takes the position that she should not have been the one required to move to another location, the fact is that the letter from her doctor, dated October 7, 2005 records her as being totally unfit for work for health reasons, with an expectation that her period of disability would last at least three months. As a result, the evidence indicates that the applicant was not in a position to return to work at any location at this time.
98After filing her Worker’s Report with the WSIB on October 4, 2005, the applicant ultimately decided not to pursue any entitlement to WSIB benefits and abandoned her claim. On January 11, 2006, the City sent a further letter to the applicant confirming that the WSIB had ruled that her claim had been abandoned, and reiterating the offer of a position at an alternate location. By this time, the applicant had obtained a further medical note dated January 4, 2006 stating that she was totally unfit for work until further notice, which was provided to the City. In light of the medical note and the ongoing investigation being conducted by the Human Rights Office, no further action was taken by the City at that time, although the applicant’s sick benefits had been exhausted by December 20, 2005 and she was no longer being paid.
99On May 29, 2006, the applicant was sent a letter by the City advising her of her ability to apply for long-term disability (“LTD”) benefits. On May 31, 2006, a lawyer who had been consulted by the applicant wrote to the City to enquire about her employment status with the City and her entitlements to benefits coverage. On July 6, 2006, City counsel responded to indicate that the applicant is a full-time City employee represented by a union, and there was no information to indicate she had been discharged. The letter notes that while the applicant had used up all of her sick bank entitlement, the City was continuing to pay her health and dental premiums. The letter also reiterated the applicant’s ability to apply for LTD benefits.
100No further action was taken by the City or the applicant until October 19, 2006, when the Director of Licensing Services sent the applicant a letter in order to clarify her employment status with the City. The letter notes that the applicant had been absent from work for an extended period on a no pay status, and that she hadn’t responded to two offers of alternative, temporary work. The letter further notes that the applicant had not provided any medical information to substantiate her prolonged absence from the workplace, in contravention of the collective agreement. The letter required the applicant to make contact with the City by no later than November 3, 2006 to discuss her ability to return to work and initiate a return to work plan, failing which the City would conclude that she was no longer interested in returning to work and her employment would be terminated.
101When the applicant did not contact the City by November 3, 2006, the Director issued a further letter on November 8, 2006 noting that he had received no contact from her and stating that as a result he had no option but to conclude that she was no longer interested in returning to work at the City. Accordingly, the applicant’s employment with the City was terminated effective immediately.
102When asked why she did not respond to the October 19, 2006 letter, the applicant testified that she was tired and overwhelmed, and just couldn’t do anything anymore. While the applicant may indeed have been tired and overwhelmed at this time, she nonetheless had been able to participate extensively in the City’s investigation into her complaint, she had been able to consult with a lawyer regarding her employment status with the City, and after her termination she was able to contact the Director to obtain her personal belongings.
103In my view, the evidence indicates that the City made a decision to terminate the applicant’s employment as a result of its failure to receive medical documentation to support her ongoing absence from work or any contact from the applicant in response to the October 19, 2006 letter. In these circumstances, the City’s conclusion that the applicant was no longer interested in working for the City was reasonable, and there is no evidence to suggest that the termination was in reprisal for the applicant having sought to claim or enforce her rights under the Code.
Remedy
Lost Income
104The purpose of the remedial provisions of the Code is to put the applicant in the position that she would have been in but for the violation of her rights. In this case, the evidence establishes that the applicant was absent from work from and after September 1, 2005 for reasons related to the sexually poisoned work environment she experienced, as well as the reprisal in the workplace and management’s initial failure to appropriately respond to her concerns.
105While the applicant was on a contract at the time which was due to expire on December 31, 2005, the evidence before me was clear that the function she performed in the Unit continued to be required and there was no reason that her employment with the City would not have been extended beyond that date.
106While the applicant was offered alternative work in late September 2005 and again in January 2006, the medical evidence that she provided to the City at the time indicates that she was unable to work in any position at that time, which I find continued to be attributable to the violations of the Code that she experienced.
107This situation continued until the City’s letter of October 19, 2006 noting the absence of medical documentation to support her continued absence and requesting that the applicant contact the City, which resulted in the termination of her employment effective November 8, 2006. While the City could have raised the issue of lack of supporting medical documentation at an earlier time, the fact remains that it did not do so, such that in my view the appropriate period for compensation runs until the applicant’s termination on November 8, 2006.
108I am not prepared to award compensation beyond this date, as the termination of the applicant’s employment related to her failure to provide medical documentation to support her continued absence and her failure to contact the City, which I am not satisfied on the evidence is sufficiently related to the violation of the applicant’s rights so as to justify an award of compensation beyond her termination.
109The respondent also raised before me the applicant’s failure to pursue her potential WSIB entitlement or potential LTD entitlement. In my view, this is not an appropriate basis upon which to limit the applicant’s entitlement to compensation for two reasons. First, I find that but for the violation of her rights, the applicant would have been able to continue her employment with the City, such that an award for lost income up to the termination of her employment on November 8, 2006 is appropriate. Second, and in any event, I was told that WSIB and LTD entitlements are self-funded by the City, such that any mitigation by claiming and being found to have been entitled to either of these benefits would not have served to diminish the City’s financial responsibility for the applicant’s loss.
110The evidence indicates that the applicant continued to be paid her full salary until December 20, 2005, as a result of her having been recorded as being on a WSIB leave. While the applicant ultimately abandoned her WSIB claim, I find that she nonetheless is entitled to receive her full salary during this period on the basis that she would have continued working had her Code rights not been violated. As a result, I find that the City did not make any overpayment to the applicant attributable to this period.
111From December 21, 2005 until November 8, 2006, the evidence indicates that the applicant was on an unpaid leave of absence, and I find that she should be compensated for her lost income during this entire period. I order that the applicant be compensated by the City for this period at an hourly rate of $21.76 for the balance of the 2005 year based on a 35 hour work week and at an hourly rate of $22.41 per hour for the compensable period during the 2006 year, less applicable statutory deductions. If there is any issue between the parties as to the calculation of the precise amount owing, I remain seized to address and resolve any such issues. Payment of this amount is to be made within 30 days of the date of this Decision.
112The applicant also has asserted a claim for lost pension benefits. To the extent that the City would have made pension contributions on the applicant’s behalf during the compensable period from December 21, 2005 to November 8, 2006, the City shall either direct these contributions to the pension plan on the applicant’s behalf if permitted under the terms of the plan together with pre-judgment interest on such amount as calculated in accordance with this Decision or, if not so permitted, shall pay this amount including pre-judgment interest, directly to the applicant within 30 days of the date of this Decision.
Compensation for Injury to Dignity, Feelings and Self-Respect
113The applicant claims a significant award of damages for pain and suffering and for the alleged malicious and vindictive nature of the respondent’s conduct. Under the current Code, a claim of this nature for what is known as non-pecuniary loss is addressed by making an award of compensation for injury to dignity, feelings and self-respect pursuant to s. 45.2(1).1 of the Code. The Tribunal’s caselaw is clear that we do not have jurisdiction to award punitive damages, and in any event, I do not find that the evidence supports that the City or any of its employees conducted themselves in a malicious or vindictive manner as alleged.
114The respondent takes the position, as stated in the Investigation Report, that “this is not the most egregious behaviour on the harassment scale”, such that a modest award of non-pecuniary compensation is appropriate. While I agree that this may not be the most egregious case of a sexually poisoned work environment, I nonetheless find that the violations of the applicant’s rights under the Code were serious. The evidence is clear that the applicant was subjected to an unwelcome and sexually poisoned work environment as a result of the comments and conduct in the workplace and in work-related contexts. While the Investigation Report indicates that the applicant participated to some degree in the workplace joking, the evidence indicates that by the summer of 2005 the applicant had become increasingly uncomfortable with the sexualized environment and was more reserved and withdrawn. Many of the allegations addressed in the Investigation Report date from this later period.
115In addition, while there was not any explicit sexual touching and while the tickling behaviour by one of the male co-workers may to some degree have been related to him being poked by the applicant, there also are findings in the Report that this male co-worker touched the applicant’s waist on several occasions, including after she had pushed his hand away. Further, the ultimate incident which led to the applicant raising her concerns, which was the posting of the sexual note on the partition of her work station stating “I want to have sex with you”, is in my view quite serious and understandably upsetting to the applicant.
116I further find that the impact on the applicant was exacerbated by the reprisal that she experienced in the workplace and by management’s initial failure to take adequate steps to respond to her concerns.
117The impact on the applicant was significant. Her evidence is that she continues to be scared and has a fear that this will happen to her again, and that she looks at life very differently now and doesn’t know who to trust. She testified that she is not eating well, is not sleeping, is having nightmares, and is thinking about this all the time. She states that she is not the same person anymore, and that she wants to move forward, but this is holding her back.
118The evidence indicates that the applicant has been receiving individual counselling for this, after her doctor referred her to a mental health therapist whom she has been seeing since October 2005.
119The applicant provided a letter from her doctor dated September 24, 2009 stating that the applicant has become very anxious and depressed ever since the incident in September 2005, that she is demoralized and has trouble sleeping, that she has recurrent nightmares, and that her symptoms are moderate to severe in intensity. The doctor notes that the applicant has no previous history of depression, anxiety or any type of mental illness.
120There was some discussion in the evidence and submissions before me in relation to incidents of stalking that the applicant experienced in 2002 when she first started working for the City as a summer student and which apparently continued after the person who was stalking her was no longer a City employee. The applicant acknowledged that she hadn’t reported the stalking to City management at the time.
121The respondent took the position before me that it was this previous stalking experience which accounts for the applicant’s response to the sexualized work environment in a manner out of proportion to the seriousness of the actual incidents. It may be that this prior stalking experience has played some role in the impact on the applicant of the later events. However, I note that after the initial stalking experience, the applicant nonetheless was able to return to and continue her employment with the City apparently without any need for medical intervention up until the time of the events at issue in this Application.
122Nonetheless, in my view, an award of non-pecuniary compensation needs to be made in the context of awards of this nature made by the Tribunal in other cases and should be proportional to the relative seriousness of the Code violations as opposed to being entirely based upon the subjective experience of the applicant. In my view, in consideration of all of the evidence before me, I find that an award of $15,000.00 is appropriate. Also, in light of the length of time that has expired since the events at issue, I find that it is appropriate to award pre-judgment interest on this amount.
Miscellaneous Expenses
123The applicant made a claim for “miscellaneous expenses” in the amount of $2,000.00. However, there is no evidence before me to support this claim. As a result, this claim is denied.
Interest
124The applicant has claimed interest on all amounts awarded to her, which I find to be appropriate.
125The applicable pre-judgment interest rate in accordance with the Courts of Justice Act would be 4.5% based upon the filing of the applicant’s complaint with the Ontario Human Rights Commission in the first quarter of 2007. However, I note that over the past three years, the pre-judgment interest rate has decreased dramatically to a current low of 0.5%. In these circumstances, I have exercised my discretion to average the pre-judgment interest rate over this period, which results in an average rate of 2.8%.
126In relation to the award of lost income and pension benefits, pre-judgment interest shall be calculated on the entire amount from the mid-point of the compensable period (which is June 1, 2006) up to the date of this award at an annual rate of 2.8%.
127In relation to the award of monetary compensation for the injury to dignity, feelings and self-respect, pre-judgment interest shall be calculated from September 1, 2005 to the date of this award at the annual rate of 2.8%, in the total amount of $1,680.00.
128Post-judgment interest at the applicable annual rate of 2.0% shall be awarded on all amounts awarded which remain unpaid more than 30 days from the date of this decision.
Future Compliance Remedies
129Pursuant to s. 45.2(2) of the Code, I have the power to order a remedy under s. 45.2(1).3 of the Code (often referred to as a “public interest remedy”) even if no order under this provision has been requested.
130In the instant case, I have carefully considered whether any such a remedy is warranted in the circumstances. I find that no such remedy is required. The evidence indicates that recommendations were made in the City’s internal Investigation Report which were appropriate to the Report’s findings and that these recommendations were substantially acted upon by the City.
131As stated above, while I would have preferred if City management had acted upon the recommendation to ensure that the Manager’s role and responsibility in failing to adequately respond to the applicant’s concerns was brought home to him, I note that the Manager did attend human rights training and his role in human rights and workplace communication issues is being addressed on an ongoing basis through the performance review process. In these circumstances, and given that the events at issue took place over four and a half years ago, I do not see that any purpose would be served in making an order requiring the City to now act on this recommendation in the Investigation Report.
ORDER
132For all of the above reasons, I make the following order:
Within 30 days of the date of this Decision, the City shall pay the applicant compensation for lost income for the period from December 21, 2005 until November 8, 2006, at an hourly rate of $21.76 for the balance of the 2005 year based on a 35 hour work week and at an hourly rate of $22.41 per hour for the compensable period during the 2006 year, less applicable statutory deductions;
Within 30 days of the date of this Decision, to the extent that the City would have made pension contributions on the applicant’s behalf during the compensable period from December 20, 2005 to November 8, 2006, the City shall either direct these contributions to the pension plan on the applicant’s behalf together with pre-judgment interest on such amount as calculated in accordance with this Decision if permitted under the terms of the plan or, if not so permitted, shall pay this amount including pre-judgment interest directly to the applicant;
Pre-judgment interest is payable on the above amounts at an annual rate of 2.8% from June 1, 2006 to the date of this Decision;
Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000.00 as monetary compensation for injury to dignity, feelings and self-respect, plus $1,680.00 as pre-judgment interest on this award;
Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision at an annual rate of 2.0%;
I remain seized to address any issues arising out of the implementation of this award.
Dated at Toronto, this 7th day of May, 2010.
“Signed by”
Mark Hart
Vice-chair