HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emanuela Ornelas

Applicant

-and-

Casamici Restaurant and Dino Sciulli

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: May 13, 2010

Citation: 2010 HRTO 1078

Indexed as: Ornelas v. Casamici Restaurant

APPEARANCES

)

Emanuela Ornelas, Applicant ) Mindy Noble and

) Sharmaine Hall, Counsel

)

)

Casamici Restaurant and ) Leah Simon and

Dino Sciulli, Respondents ) Madeleine Loewenberg, Counsel

)

INTRODUCTION

1In her December 2008 Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), the applicant alleges that the respondents’ actions infringed her rights under the Code to be free from sexual harassment and discrimination in respect of employment, as well as reprisals.

2The applicant alleges that during her brief period of employment as a waitress at the Casamici Restaurant (“Casamici” or “the restaurant”), the personal respondent, one of the owners of the restaurant, made a number of unwelcome sexual comments to her. She also alleges that the personal respondent stood behind her on one occasion during her third and final week of employment, and rubbed up against her with his body. The applicant alleges that she confronted the personal respondent about his conduct and he terminated her employment shortly afterwards.

3The respondents readily concede that, if I accept the applicant’s evidence as true, the alleged conduct would constitute sexual harassment contrary to the Code. However, the personal respondent categorically denies that he ever made any comments of a sexual nature to the applicant. He testified that the applicant’s testimony in this regard was “complete fabrication”. The respondents also deny that the applicant ever confronted the personal respondent about the alleged sexual harassment prior to the termination of her employment for poor performance.

4The applicant also alleges that, after she filed the Application, the personal respondent, through a friend and then through his legal counsel, threatened the applicant with financial consequences and a civil action for defamation, among other things, if she continued to pursue her Application. The applicant alleges that these threats constituted reprisals within the meaning of the Code.

5The respondents deny that a friend of the personal respondent telephoned the applicant on his behalf to persuade the applicant to drop her Application. They further submit that in order for me to make a finding of reprisal under the Code, the applicant would have to show not only that the respondents were behind the call in question, but that the respondents intended the call as an act of retaliation against the applicant for filing a human rights complaint. The respondents submit that the applicant has not done this.

6With respect to the allegation that the respondents reprised against the applicant when their former legal counsel wrote to the applicant, threatening a civil action, the respondents submit that the letter is covered by absolute privilege and settlement privilege and therefore cannot form the basis for a finding of liability under the Code. Moreover, the respondents take the position that the content of the letter is such that it could not constitute a reprisal under the Code, even if I were to find that the letter is not privileged.

OVERVIEW OF EVIDENCE

7The applicant testified on her own behalf and also called her doctor and a handwriting expert as witnesses. With the respondents’ consent, she also submitted the affidavit of a manager of a restaurant where she worked after the termination of her employment by the respondents as evidence that the applicant was a good waitress at that restaurant.

8The personal respondent was the first witness called by the respondents. The respondents also called as witnesses Peter Ianuzzi and Stephanie Rudnik, who, at the time of the hearing, had worked as servers at the restaurant for two-and-a-half and three years, respectively. Massimo Sorentino, the chef and one of the owners of the restaurant, also testified on behalf of the respondents, as did Dario Favot, a customer who was served by the applicant on September 20, 2008, the day before she was fired.

9At the request of the parties, I made an Order excluding witnesses at the commencement of the hearing.

First week of employment

10On September 4, 2008, the applicant started work as a waitress with the corporate respondent, a small restaurant owned and operated by the personal respondent and Mr. Sorentino, the chef.

11The applicant testified that on her very first day of work, the personal respondent told her that when the applicant had first brought her résumé to the restaurant, “all eyes were on her” and that she looked “great”. She testified that he also said of her, “Those legs.” The applicant testified that, although she thought this comment was “odd”, the second week of work was “when it started” and that the personal respondent’s behaviour did not begin to make her feel uncomfortable until then.

12The personal respondent denied that he told the applicant that she looked great or that all eyes were on her or made a comment about her legs. He testified this allegation was fabricated.

Second week

13The applicant testified that, on the days she worked at the restaurant, she ate lunch with the personal respondent and Mr. Sorentino. She testified that Ms Rudnik, another waitress at the restaurant, joined them on one occasion.

14The applicant testified that during her second week of work, the personal respondent told her he had heard the applicant and her ex-husband had separated because the applicant had been unfaithful. The applicant testified that, during this conversation, the personal respondent also said the applicant probably had a lot of boyfriends, asked her about the size of her boyfriend’s penis and said that he “bet” it was big. The applicant’s evidence was somewhat unclear with respect to when and where the personal respondent made these alleged comments, although her evidence suggested that it was during lunch. The applicant testified that when the personal respondent made the comment about her boyfriend’s penis, she immediately told him that she could not believe what he had said and was “quiet for most of the remaining lunch.” The personal respondent denied this conversation ever occurred.

15The applicant testified that she had a lunchtime conversation with the personal respondent during her second week of work in which the personal respondent shared details about his personal life with her, including details about an ex-girlfriend of his who had allegedly left him for someone else. The applicant testified that during this conversation, the personal respondent told her, “All you women are sluts.” The applicant testified that she rebuked the personal respondent, telling him she hated what he had said and that his comment was completely “unprofessional” and made her “so uncomfortable”. The personal respondent testified that this conversation did not occur and he would never make a comment that all women were “sluts”.

16Mr. Sorentino, who always ate lunch with the personal respondent and the applicant on the days the applicant worked, testified that there were never any inappropriate conversations at lunch and never any discussions about the size of the applicant’s boyfriend’s penis or any comment by the personal respondent that all women were “sluts”.

17The personal respondent and Mr. Sorentino testified that there was one lunchtime conversation about the applicant’s boyfriend. They testified that Mr. Sorentino asked the applicant why she was not living with her boyfriend and she responded, giving some personal details about her boyfriend’s financial and family circumstances. The applicant denied that such a conversation took place.

18The personal respondent testified that the only time he ever discussed his personal life with the applicant was during one lunch, on about September 12, 2008, when he finally agreed to answer the applicant’s repeated questions about his marital status. This evidence was consistent with the evidence of Ms Rudnik, who testified that the applicant asked her privately about the personal respondent’s marital status and whether the personal respondent was “gay because he had not hit on her yet”. It was also consistent with Mr. Sorentino’s evidence. He testified that the applicant asked the personal respondent a few times about his marriage and whether he was happy at home. The applicant denied that she ever asked about the personal respondent’s marriage or sexual orientation.

19According to the personal respondent, during the conversation in question, he shared some personal information about his (happy) marriage and his thoughts on marriage generally. The personal respondent testified that, during that conversation, he talked about a female friend who helped him through a difficult time when he was opening the restaurant. He denied telling the applicant that he had or had had a girlfriend. Ms Rudnik testified that she was present for this lunchtime conversation and her evidence and Mr. Sorentino’s confirmed the personal respondent’s evidence about what was said during the conversation.

20The applicant also testified that the personal respondent said, “We should go for a drink” after one of her shifts during the second week of work. She testified that she was not sure if he meant just the two of them, but that is how she took it. She declined the invitation and testified that the personal respondent did not press the issue. During cross-examination, she testified that the personal respondent asked her out for a drink a couple of times during her second week of work. The personal respondent denied that he ever invited the applicant out for a drink.

Third week

21The applicant testified that one morning during her third week of work, the personal respondent said, “What an ass you have”. She testified that he told her he was an “ass and tit man”. She testified that she immediately told him that she objected to his comments and told him not to say anything like that again. The applicant testified that the personal respondent did not respond. Again, the personal respondent testified that the applicant’s evidence about this verbal exchange was a complete fabrication.

22The applicant testified that on Thursday, September 18, 2008, the personal respondent intentionally rubbed up against her from behind, while she was standing at the counter. As he did this, he told her that one of her blouse buttons was undone.

23The applicant testified that, later, as she ate lunch with the personal respondent and Mr. Sorentino, the personal respondent “noticed that she was quiet” and asked her what was wrong. She testified that she replied that he made her “sick” when he rubbed up against her. She testified that she told him that he was making her very uncomfortable and that she did not want to be in such a disrespectful environment. The applicant testified that the personal respondent said nothing in reply. Mr. Sorentino testified that he never heard the applicant say anything about the personal respondent sexually harassing her while she was employed at the restaurant.

24The personal respondent denied that he ever touched the applicant in a sexual manner and that she confronted him about it later. He testified that he never touched the applicant with his body, ever. He testified that the bar area is small and it would be possible to bump into someone if more than one person was in that area at the same time. However, he testified that it would not have been busy on a weekday morning, the time of the alleged incident, and there would be no reason for him to go behind the bar area at the same time as the applicant. The personal respondent testified that he did recall that the applicant had a middle button undone one day at work and he told her. She buttoned it up. He denied that this was sexual in nature.

Work Performance Issues

25The applicant testified that there were never any issues with her work performance at the restaurant and that she received nothing but positive feedback on her work from the respondents and customers. This was contradicted by the evidence of the two owners of the restaurant, the personal respondent and Mr. Sorentino; two of the applicant’s fellow servers, Ms Rudnik and Mr. Ianuzzi; and a customer served by the applicant, Mr. Favot. They all testified that there were a number of problems with the applicant’s work performance during her brief tenure at the restaurant.

26The personal respondent testified that the first sign of trouble with the applicant was that, despite reminders from him, she did not comply with his direction that she learn the restaurant’s menu and familiarize herself with the main ingredients in the various dishes. However, the problems with the applicant’s work performance became more pronounced during her third week of work.

27Mr. Sorentino and Ms Rudnik testified that during the September 19, 2008 lunch shift, the applicant departed from the restaurant’s practice of “first come, first served”. She ignored Mr. Sorentino’s direction and served food to a table for which it had not been intended. According to Mr. Sorentino and Ms Rudnik, the applicant then argued that her actions were justified because the customers were in a hurry and everyone got the right food in the end. This was relatively early in the applicant’s employment. Mr. Sorentino testified that he felt at that point that the applicant was not going to work out as a server and should be let go, but that the final decision was the personal respondent’s because he managed the servers. He testified that he spoke to the personal respondent by telephone shortly after the incident and told him that the applicant had “messed up” the lunch service.

28This was consistent with the evidence of the personal respondent. He was not at the restaurant during the September 19, 2008 lunch service, but got a text from the applicant asking him to call her to talk about something important. He testified that he called the restaurant to find out what was going on. He spoke to Ms Rudnik and then to Mr. Sorentino, who both told him that the applicant had thrown off the lunch service by serving the wrong table. The personal respondent testified that Mr. Sorentino told the personal respondent that he had “given [the applicant] heck” because of it. The personal respondent testified that he then telephoned the applicant. He testified that she acknowledged having served the wrong table but tried to justify her actions because the customers were in a rush. She told him that Mr. Sorentino had yelled at her. The personal respondent testified that he let the applicant know that he was not satisfied with some aspects of her work performance but told her that he would give her a chance to work with his best servers the following night to see if she could pick up how things were done at the restaurant.

29Mr. Sorentino’s evidence was consistent. He testified that the he and the personal respondent discussed the situation with the applicant again later that day, September 19, 2008, and the personal respondent told him that he had decided to give the applicant another chance by letting her work on Saturday night.

30The applicant denied that she made any mistakes during the lunch service on September 19, 2008. She testified that everything went smoothly during the lunch service. She denied that the chef at the restaurant, Mr. Sorentino, became upset with her about serving food to the wrong table or that Mr. Sorentino or the personal respondent ever spoke to her about it.

31On Saturday, September 20, 2008, the applicant worked the dinner shift. The personal respondent testified that the applicant called him “nitpicky” when he corrected the way she had laid a tablecloth while setting up for the dinner service. He testified that she pointed out an error he had made on her cheque and told him that he was “not perfect either”. The personal respondent testified that he did not like the way the applicant spoke to him, particularly in front of other staff. The applicant acknowledged that the personal respondent criticized the way she set up tables on one occasion during her employment but denied she ever called the personal respondent “nitpicky”. She conceded however that he was very detail-oriented.

32Mr. Ianuzzi, another server at the restaurant, also worked the September 20, 2008 dinner shift. He and the personal respondent testified that the applicant made an error that night taking the food order for a table of between six to eight people. Mr. Ianuzzi had to retake the order when the wrong food was served. The applicant acknowledged that she took the order for the table in question but denied that she made a mistake or that there was any mix-up in the order at all. She testified that if the wrong food had been brought to the table, she would have definitely known about it. This was consistent with Mr. Ianuzzi’s evidence that, in the small restaurant, the applicant would have seen the wrong food being served to the table and then being returned to the kitchen. Mr. Sorentino was in the kitchen that night, cooking. He testified that he knew about the order mix-up because it threw off the kitchen. He testified that the applicant said that the customers had ordered the food which was initially served but the customers said they did not.

33Mr. Favot, a customer, testified that he and his wife were served by the applicant on September 20, 2008. He testified that the applicant failed to charge him for an expensive bottle of wine which she served him and for a bottle of sparkling water he ordered from her (but which she did not initially bring until a repeat request). Although during cross-examination, Mr. Favot conceded that it was possible that he ordered wine from someone other than the applicant (though his best recollection was that he ordered it from her), he testified that it was the applicant who served the wine. Mr. Favot also testified that the bill the applicant brought him included a charge for a dessert he did not order. Mr. Favot testified that while she served him and his wife, the applicant complained about the personal respondent being tough to work for and shared her opinions about how well the personal respondent’s business was doing, which he and his wife felt was inappropriate. Mr. Favot alerted the personal respondent to the fact that the applicant had not charged him for the wine when he told him that he had left cash to cover it.

34In her testimony, the applicant was adamant that she did not serve wine to Mr. Favot and his wife on September 20, 2008 or fail to charge them for things they ordered.

35In contrast to the testimony of all of the other witnesses who were at the restaurant on the night of September 20, 2008, the applicant testified that “everything went smoothly” during the dinner service and that, at the end of the evening, the personal respondent told her she had done a “good job”. She denied making any mistakes. She testified that at the end of the evening, the personal respondent suggested they go out for a drink. The applicant testified that when she said no, the personal respondent offered the applicant, Mr. Ianuzzi, and Mr. Sorentino a drink. She testified that they all had a beer and talked about how smoothly the night had gone.

36The personal respondent and Mr. Sorentino testified that they had a private discussion at the end of the September 20, 2008 shift about their dissatisfaction with the applicant’s work. They both testified that they agreed that the applicant was not working out as a server and the personal respondent would tell her that her employment was being terminated. The personal respondent, Mr. Sorentino, and Mr. Ianuzzi all denied that they had a drink with the applicant at the end of the evening.

Termination of employment

37On September 21, 2008, after she had worked ten shifts over the course of 17 days, the personal respondent met the applicant at the restaurant and told her that her employment was being terminated because of mistakes she had made, especially the ones she made on September 20, 2008. The applicant was incredulous and insisted that she had not made any mistakes.

38According to the applicant, the personal respondent told the applicant that she was being let go because she was costing him too much money, had not charged a customer for a bottle of wine the night before and had also been rude to customers. However, according to the applicant, the real reason the personal respondent terminated her employment was because he knew that he would never get to have sex with her. She testified that she accused the personal respondent of this during the termination meeting. According to the applicant, she asked the personal respondent if he would have kept her on if she had flirted with him or gone out with him, but he “stuck to his guns” saying, “I am sorry, Emanuela. I have to do for the best interests of the restaurant. I am here to make money and if you are not going to charge things to people I have to let you go.”

39The personal respondent’s testimony was largely consistent with the applicant’s regarding the termination meeting. He denied that the applicant accused him of wanting to have sex with her but testified that she kept saying that it was discrimination and he was not allowed to fire her. The personal respondent testified that he explained to the applicant that she was not meeting his standards for the restaurant.

40The personal respondent’s evidence diverged from the applicant’s with respect to what documents the applicant signed during the termination meeting. The personal respondent testified that the applicant signed two documents during the termination meeting: a payroll document acknowledging that she had been paid in full and an Employee Information Sheet which stated that the applicant’s “reason for leaving” employment was because of her work performance. The applicant testified that she signed the first document but denied she signed the Employee Information Sheet. A forensic document examiner and handwriting expert called by the applicant testified that the signature on the Employee Information Sheet was not the applicant’s, but a forgery of her signature.

ANALYSIS: ALLEGATIONS OF SEXUAL HARASSMENT AND TERMINATION AS REPRISAL

41The onus is on the applicant to establish, on a balance of probabilities, that the respondents violated her rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test: F.H. v. McDougall, 2008 SCC 53.

42In this case, there were vastly differing accounts regarding what occurred during the applicant’s brief period of employment with the respondents and the parties agreed that the ultimate disposition of this case would turn on credibility. In assessing credibility, I must determine whether the applicant’s or the respondents’ version of events is in greater “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).

43Having considered all of the evidence, I am not persuaded on a balance of probabilities that the personal respondent made sexual comments to the applicant during her employment, or touched her on one occasion in a sexual manner. The personal respondent denied all of the applicant’s allegations of sexual comments and sexual touching. The only evidence that he did any of these things was provided by the applicant and there were significant problems with the applicant’s evidence which lead me to doubt her credibility.

44In some respects, the applicant’s testimony was inconsistent with the allegations in the Application she filed with the Tribunal. In one key respect, her evidence was internally inconsistent. Her testimony was contradicted in many respects by the evidence of all of the other witnesses with whom she interacted at the restaurant and by some of the documentary evidence. With respect to some of the allegations upon which the Application is based, her evidence was so implausible as to be incredible. In the end, the applicant’s evidence was not sufficiently trustworthy to meet her onus of proving on a balance of probabilities that the personal respondent did the things she alleges.

45Although I find on a balance of probabilities that the personal respondent did not witness the applicant signing the Employee Information Sheet on September 21, 2008, and therefore reject his evidence on that point, I nonetheless prefer the personal respondent’s evidence that he did not make sexual comments to the applicant or touch her in a sexual manner. Overall, the personal respondent’s evidence with respect to the material allegations in the Application was more consistent with the overall evidence than that of the applicant and more credible. Whether the applicant signed the Employee Information Sheet was not in and of itself a critical evidentiary point, though my finding that the personal respondent probably did not see the applicant sign the document as he testified is relevant to my assessment of his credibility. My reasons are set out below.

Applicant’s Credibility

Inconsistency with the Application

46During her testimony, the applicant attested to a number of very significant facts which were not contained in her Application. She testified that she repeatedly confronted the respondent about the unwelcome nature of his behaviour:

• Before she even started work, the applicant testified that she told the personal respondent that he had better not be “that way” with her because she demanded respect.

• When he allegedly asked her about the size of her boyfriend’s penis, the applicant testified that she told the personal respondent, “I can’t believe you just asked me said that. I am not answering that.”

• When he said, “all women are sluts”, the applicant testified she told the personal respondent she “hated” what he said and it made her “so uncomfortable”.

• When he said, “What an ass,” she told him that she did not like it and he should not say such a thing again.

• When he allegedly rubbed up against her, she told him that day that he was “making her sick” and “very uncomfortable”, and then the next day further that his explicit comments were “very degrading”, that he hated and degraded women, and that if he did “that” one more time, she was not going to stand for it; she was going to “report” him.

47Overall, the applicant testified that she confronted the personal respondent a total of five times over the course of only nine days of work about the unwelcome nature of his behaviour. However, the Application alleges that the applicant confronted the personal respondent about the unwelcome nature of his behaviour once, on Friday, September 19, 2008.

48In addition, the applicant testified that the personal respondent made a sexual comment about her legs and how great she looked on her very first day of work and that the personal respondent invited her to go out for drinks a couple of times during her second week of work. These allegations were not contained in the Application filed with the Tribunal.

49These are not minor details. These are important facts to have left out of the Application and a subsequent request to amend it. In particular, the applicant’s allegations that she repeatedly confronted the personal respondent is significant because proving that the respondent “knew or ought to have known” that his behaviour was unwelcome is an essential element of establishing that he sexually harassed the applicant.

50The Application was reviewed by the applicant before it was filed and was signed on behalf of the applicant, declaring it to be a “complete and accurate” record of the facts. When it was put to the applicant during cross-examination that her Application omitted a number of important facts, the applicant twice responded, “Really?”, suggesting that she was not aware that these facts were missing from her Application. She then testified that the Application did not refer to the personal respondent’s invitations to go for drinks because that did not “stick out” to the applicant. After suggesting that she was not even aware that the Application was missing the allegations about the applicant’s repeated confrontations of the personal respondent, the applicant then testified that she had known all along that the Application did not contain “the whole story”. Then she testified that she was so distraught when the Application was being prepared that she “did not even pay attention” to what was being included in it. Ultimately, she attempted to blame her legal counsel for any omissions. She testified that she answered all of her lawyer’s questions and that it was her “lawyer’s job” to include all of the relevant information in the Application.

51I do not find the applicant’s explanation for the omission of key allegations from her Application to be credible. First, she gave inconsistent explanations for the omissions. The applicant first suggested that she was not aware of the omissions, then that she was aware all along, then that she was too distraught to be aware, and finally, that any omissions were the fault of her lawyer. After the original Application was filed, the applicant’s counsel diligently filed a Request to Amend the Application by adding further particulars, some of which were more tangential than the applicant’s alleged repeated confrontations of the respondent. This belies the sort of lawyerly indifference the applicant attempted to suggest during her testimony.

52I also have to reject as incredible the applicant’s explanation that her Application did not include the allegation that the personal respondent twice invited her to go out for drinks during her second week of work because it did not “stick out”. The applicant only worked at the restaurant for 10 shifts over the course of 17 days. Even if these incidents did not “stick out” at the time they occurred, it seems to me they ought to have “stuck out” in retrospect and at the time she filed her Application, given the applicant’s allegation that the personal respondent terminated her employment because the applicant was not responding to his sexual advances. Also, the applicant’s assertion that these things did not “stick out” is inconsistent with the fact that she volunteered them during her examination-in-chief without any leading by her counsel.

53The inconsistency between the applicant’s testimony and the Application undermined the applicant’s credibility with respect to the material allegations. The absence of a credible explanation for the omissions of important facts from the Application supports the conclusion that applicant embellished her story during her testimony in an attempt to strengthen her case that the respondent made sexual comments to her and knew that his behaviour was unwelcome.

Internal Inconsistency

54There were also an internal inconsistency in the applicant’s evidence about what transpired during and after the September 20, 2008 dinner shift. During cross-examination, the applicant testified that the respondent offered her a drink after all the customers had left, and she initially refused. She testified that she only accepted a beer when the personal respondent called her a “tight ass”. She testified that this upset her and made her feel disrespected, and “When he said that, I knew he wasn’t listening to the phone call where I told him to stop.”

55This evidence was not consistent with her testimony-in-chief. In chief, the applicant omitted any reference to her allegation that the personal respondent called her a “tight ass”, even though it was a material allegation in the Application. Nor did she suggest in chief that she had any lingering concern on September 20, 2008, that the personal respondent would continue to harass her. She testified that given the talk that she had with the personal respondent the day before (warning him not to sexually harass her again), she felt that “things were going to be different.” In contrast to her evidence during cross-examination, the applicant testified in chief that when she told the personal respondent that she did not want to go out for a drink, he offered all of the staff a drink at the restaurant. She testified that she and the other staff then had a drink together and talked about how smoothly the night had gone, that the personal respondent told her she had done a “good job” and that he was in a “good mood”. She was specifically asked if she and the personal respondent talked about anything else that night. She testified, “No, just how smoothly the night went.” This inconsistency in the applicant’s evidence on one of the allegations upon which her Application is based undermines her credibility on a material allegation.

Implausibility, Omissions, and Inconsistency with Other Evidence

56The version of events put forward by the applicant was also implausible and incredible in a number of respects. For example, the applicant testified that she could not remember how the personal respondent reacted when even before she started working for him she warned him not to sexually harass her. (She testified this was her intention when she told him she had heard “things” about him and he had better not be like that with her.) Confronting her boss about sexual harassment even before she started working for him ought to been a significant event and one which stuck out in the applicant’s memory. The applicant’s evidence that she could not remember his reaction to such an out-of-the-ordinary conversation was not credible. I prefer the personal respondent’s version of this event, which was altogether more plausible and in greater harmony with the probabilities in this case.

57The personal respondent indicated that the applicant did tell him before she started work that she had “heard things” about the way he treated staff and told him that she was “not the type of girl to hold things in”. The personal respondent invited her to elaborate but she would not. The personal respondent described himself during his testimony as a very meticulous restauranteur who pays a high level of attention to detail and testified that some of his staff in the past had found him to be too demanding. This was confirmed by the other two servers who testified as well as the personal respondent’s business partner, Mr. Sorentino. He testified that when the applicant told him she had heard things about him, he took her to be referring to his demanding nature. He told her that as long as she did her job, she would not have any trouble. The applicant replied, “Just know I am not afraid to speak my mind.” The personal respondent testified that after this conversation with the applicant he had a knot in his stomach and felt uneasy, but tried not to pay attention and made a conscious decision to expect the best. This makes a lot more sense than the applicant’s attempt to characterize the conversation as an advance warning not to sexually harass her, particularly in light of the applicant’s evidence that she could not remember the personal respondent’s reaction.

58When she testified, the applicant did not volunteer how the personal respondent reacted on any of occasions when she confronted him about sexual comments and touching. It was only when she was specifically asked, usually by me, that she gave any evidence in this regard, either saying that she could not recall his reaction or that he did not have one. It was as if the respondent’s reaction to her reproaches was something she had not even considered before. This omission in the applicant’s evidence strengthens my impression that the applicant was embellishing her story as she went along.

59The only reaction of the personal respondent the applicant described was during a September 19, 2008 telephone conversation when the applicant testified she confronted the personal respondent for a second time about rubbing up against her the day before. The applicant testified she told the personal respondent that she would not stand for his behaviour and if he did “it” again, she would “report him”, he was making her feel very degraded, and she felt like he hated and degraded all women. In response to these strong and unequivocal accusations, the applicant testified the personal respondent responded only with concern for her, saying, “Oh my God, you sound really upset.” She testified he offered her the day off, but he did not force it on her when she declined, saying that she needed the money. According to the applicant, when threatened with a sexual harassment complaint and accused of such an extreme thing as hating and degrading all women, the personal respondent reacted only with concern for her. This is so implausible as to not be credible.

60I prefer the personal respondent’s version of events with respect to the September 19, 2008 telephone conversation between him and the applicant. As discussed above, Mr. Sorentino and Ms Rudnik testified that September 19, 2008, was the day that the applicant served food to the wrong table because the customers she served, though seated later than the customers for whom the food was intended, were in a hurry. The personal respondent testified that he telephoned the applicant in response to a text message that she needed to talk to him. When he reached her, the personal respondent testified that the applicant reiterated what Ms Rudnik and Mr. Sorentino had already told him about the lunch service and told him that Mr. Sorentino had yelled at her and that everyone was picking on her. The personal respondent testified that he explained the “first come, first served” protocol to the applicant and took the opportunity to remind the applicant that she was not learning the food and wine as she had been instructed to do. He testified that, at that point, he had “seen enough” and had basically decided the applicant was not going to work out, but felt sorry for her when she started to cry on the phone. He testified that he told her he would give her one more chance to work the Saturday night dinner service with his “A team” to see if she could pick up how things were done at the restaurant. The respondent’s account of the September 19, 2008 telephone conversation was rich in detail, more consistent with the overall evidence and more plausible than the applicant’s version of events.

61In at least one respect, the applicant’s evidence was so inconsistent with the other evidence and so implausible that I have to conclude that the applicant deliberately attempted to mislead the Tribunal. The applicant testified that she dutifully recorded her tips for each of her ten shifts on her personal calendar, more or less contemporaneously. The calendar itself was entered into evidence and shows that, for many shifts, the original amount of tips was written over by the applicant, generally changing them to a larger amount. Out of 10 entries, this appears from the calendar to have occurred five times. The applicant offered explanations for only a couple of these changes and maintained that the corrected (higher) amounts were accurate, even when confronted with evidence which showed that all of her figures could not have been right.

62In particular, a cash-register-generated record showed the restaurant’s total sales for the lunch shift on September 4, 2008 to have been around $153. The applicant worked the lunch shift on that date with the personal respondent, who was also serving and who would also therefore have partaken in the tips. The applicant testified that she herself took home $75 in tips, or the equivalent of 50 percent of the total sales. This is highly implausible. I prefer the personal respondent’s evidence that the applicant’s tips for that day would have been between $10 and $21. The applicant testified that she initially wrote that she had received $20 in tips on September 4, 2008, and later changed it to $75. The applicant did not offer a reasonable explanation for the discrepancy between what she claimed to have earned and what I find she did in fact earn. The only conclusion to be drawn is that the applicant was not truthful with the Tribunal on this point.

63The applicant testified that she earned $225 and $220, respectively, on each of the two dinner shifts she worked. Both of these entries appear to have been changed after the fact. Mr. Ianuzzi and Ms Rudnik both testified that they had never earned that much in their two-and-a-half and three years at the restaurant (coming close only on Valentine’s Day and New Year’s Eve), and that tips on a “super busy” dinner shift would normally be about half of what the applicant claimed. I prefer the evidence of Mr. Ianuzzi and Ms Rudnik to that of the applicant. Mr. Ianuzzi’s and Ms Rudnik’s evidence was consistent. Moreover, the applicant has not provided a credible explanation for changing half of the tips entries she made on her calendar, including the dinner shift entries. I find it more likely than not that the applicant exaggerated the amount of tips she earned at the restaurant for the purpose of bolstering her claim for monetary compensation. Although the evidence about the applicant’s tips was not directly related to a material allegation in the Application, it is relevant to the applicant’s general credibility, and diminishes it to some extent.

Prior Consistent Statements

64The applicant submitted at the hearing that I should find her evidence more credible than the personal respondents’ because of prior consistent statements she made about the alleged sexual harassment after her employment was terminated. She told the personal respondent, his brother-in-law (on Facebook), and her doctor that the personal respondent had sexually harassed her and then terminated her when she did not respond to his sexual advances.

65It is true that prior statements which are inconsistent with testimony are admissible to undermine the witness’ credibility. However, perhaps paradoxically, the converse is not true. Contrary to the applicant’s submission, with limited exceptions, none of which were argued or evident in this case, prior consistent statements are generally not admissible to bolster credibility. The rationale for this well-established evidentiary rule is that, whereas a prior inconsistent statement may raise a legitimate doubt as to the witness’ credibility, prior consistent statements do nothing to enhance a witness’ credibility. The likelihood that the story is true is not increased because it has been repeated many times. Accordingly, I must reject the applicant’s submission that her credibility is enhanced by the fact that she told people that the respondent had sexually harassed her after her employment was terminated.

Respondents’ Credibility

66Having considered all of the evidence carefully, I prefer the personal respondent’s evidence to that of the applicant with respect to the alleged sexual harassment and his reasons for terminating the applicant’s employment. The personal respondent’s evidence was more consistent with the preponderance of evidence adduced at the hearing than the applicant’s. His account of what transpired with the applicant was internally consistent, rich in detail and made sense. There was nothing implausible in the respondent’s version of events.

67However, there is one thing about the personal respondent’s testimony which troubles me. The personal respondent testified that he watched the applicant sign two documents during the September 21, 2008 meeting in which he terminated the applicant’s employment. The applicant acknowledged that she signed one document during the termination meeting acknowledging that she had been paid in full. However, she denied that she signed the Employee Information Sheet, which included stated under the “Reasons for Leaving” section: “Dismissed from position on September 20, 2008, did not work out, many mistakes, lack of work ethic. All money owing paid in full.”

68Dr. Singla, a handwriting expert called by the applicant, attested that he was “100 percent” certain that the signature “E. Ornelas” on the Employee Information Sheet was a forgery. I am not unsympathetic to the personal respondent’s position that he could not afford the significant cost of retaining his own handwriting expert to refute Dr. Singla's testimony. However, the consequence is that the only expert evidence before me is that of Dr. Singla and I have no reason to doubt his expertise or credibility. Dr. Singla gave thorough reasons for his conclusion that the signature on the Employee Information Sheet was not the applicant’s. Moreover, Dr. Singla’s evidence is consistent with the applicant’s evidence that she did not sign the sheet and in greater harmony with the probabilities of the situation.

69The applicant and the personal respondent both testified that, during the termination meeting, the applicant repeatedly stated that the personal respondent was discriminating against her by terminating her employment and that he was not allowed to fire her. The personal respondent testified that the applicant “was telling me that she was a fantastic waitress who made no mistakes because she truly believed she was amazing at the job. Customers loved her. That is what she thought.” All of the evidence before me suggests that, during the termination meeting, the applicant vigorously contested the suggestion that there were any problems with her work at the restaurant. In those circumstances, I find it improbable that the applicant would have signed a piece of paper which acknowledged that her termination was based on her “many mistakes” and “lack of work ethic”.

70If I find that the applicant did not sign the Employee Information Sheet during the September 21, 2008 termination meeting, which I do, then it seems to me I must find that the personal respondent was either not being truthful when he testified that he saw the applicant sign the sheet or he was somehow honestly mistaken about what he saw and someone other than the personal respondent signed the applicant’s name without his knowledge. The document was in the respondents’ possession throughout and the latter possibility is too far-fetched to be credible. The most probable explanation is that the personal respondent was not truthful when he testified that he saw the applicant sign the Employee Information Sheet during the termination meeting and I therefore reject the personal respondent’s evidence on this point.

71Even though I find the personal respondent’s evidence that he saw the applicant sign the Employee information Sheet was not credible, that does not mean that he lied about not sexually harassing the applicant. Although I reject the personal respondent’s evidence on the one point, and therefore approach the balance of his evidence with some caution, I nonetheless prefer the personal respondent’s evidence to that of the applicant overall, and in particular with respect to the material allegations in this Application.

72The personal respondent’s evidence was consistent with the evidence of all of the other witnesses who interacted with the applicant during her employment at the restaurant. Mr. Sorentino, for example, confirmed the personal respondent’s evidence that there were problems with the applicant’s work performance, particularly on September 19 and 20, 2008, and that he and the personal respondent jointly decided to let the applicant go because of those problems. Mr. Sorentino also confirmed the personal respondent’s evidence that there were never any lunchtime conversations about the applicant’s boyfriend’s penis or about women being “sluts”. Nor did he witness the alleged lunchtime conversation on September 18, 2008 when the applicant testified she told the personal respondent that she did not like the way he rubbed up against her earlier that day, that he was making her “sick”, and that she was very uncomfortable. Although Mr. Sorentino acknowledged the possibility that he did not hear everything that was said during lunch, I find it more likely than not that if such lunchtime conversations occurred, he would have heard some part of them. Moreover, the applicant herself testified that these things were said during lunch and that Mr. Sorentino was present for lunch. In her testimony, the applicant did not suggest that Mr. Sorentino was not present for parts of the lunchtime conversations or otherwise explain why he might not have heard them. This unexplained gap in the applicant’s evidence further detracted from the credibility of her evidence.

73Mr. Sorentino was a very honest witness whose evidence was free from any attempt to embellish or exaggerate. For example, when he testified about the applicant serving food to the wrong table on September 19, 2008, he did not exaggerate the seriousness of the error. He candidly acknowledged that the customers had not even noticed. He also readily acknowledged when he did not recall something and he answered the questions put to him to the best of his ability, whether the answers advanced the respondents’ case or not. For example, he testified that the personal respondent would never tell a server that he was a “tits and ass” man, but he opined that the personal respondent might do such a thing when he was “with the guys”. He also admitted that he was the one who asked the applicant why she was not living with her boyfriend, even though she was complaining to the Tribunal about being asked personal questions, among other things.

74The personal respondent’s evidence was also consistent with Mr. Favot’s evidence about the applicant’s failure to charge him for the wine he ordered and the other problems with her service. Although the applicant suggested that Mr. Favot conspired against her with the personal respondent, Mr. Favot was somewhat of a reluctant witness. His evidence about the problems with the applicant’s service was restrained if anything. For example, although he testified that the applicant complained to him and his wife on the first occasion she met them that the personal respondent was very difficult to work for and shared too much other personal information, Mr. Favot was prepared to “chalk it up” to the fact that she was new. He referred a number of times during his testimony to not wanting to get anyone in trouble. He was an independent witness. Even though he was a regular customer of the restaurant, that fact alone is insufficient to conclude that he colluded with the personal respondent and lied under oath about the applicant’s mistakes. Moreover, during his testimony, he identified a copy of his bill from the night in question which confirmed his testimony.

75The personal respondent’s evidence was also consistent with the documentary evidence, with respect to the amount of the applicant’s tips on September 4, 2008, and also with respect to the number of guests at a table served by the applicant on September 20, 2008, her last day of work. The applicant testified that, on that date, she served a table of 20 to 25 from a set menu and she made no mistakes in taking their order. The personal respondent testified that the applicant actually served a party of six or seven and there was no set menu. A copy of the bill for the table in question confirmed this evidence.

76The applicant argued that I should prefer her evidence to that of the personal respondent because of inconsistencies in the respondents’ witnesses’ evidence. There were some discrepancies in the respondents’ witnesses evidence about the mix-up during the September 19, 2008 lunch service, for example, including with respect to when and where the various witnesses spoke to each other about the mix-up. Also, regarding the September 20, 2008 dinner service, Mr. Ianuzzi testified that the applicant’s mix-up in her customers’ order was discovered when he brought the wrong main courses to the table. The personal respondent testified the error was discovered when the applicant served the wrong appetizers. These inconsistencies do not diminish the personal respondent’s credibility in my eyes. Such minor discrepancies are in keeping with what one would expect given the witnesses were recollecting relatively insignificant details of incidents which occurred approximately one year earlier.

77Some of the other evidence the applicant pointed to did not really reveal inconsistencies in the respondents’ evidence, in my assessment. For example, the applicant suggested that Ms Rudnik, another waitress at the restaurant, testified that she told the personal respondent that the applicant was flirting with customers. The applicant argued that, if that were true, there is no way the personal respondent would have tolerated such unprofessional conduct, given his particular nature, yet there was no evidence that he ever spoke to the applicant about it. However, Ms Rudnik’s evidence, when specifically asked, was that she told the personal respondent that the applicant was “really curious about the customers and their marital status”. Neither the personal respondent nor the applicant gave any evidence at all about this issue. I do not see how an inconsistency arises on this evidence.

78Similarly, the applicant argued that there were inconsistencies in the respondents’ witnesses’ testimony about what the applicant told them about her ex-husband. The personal respondent testified that the applicant criticized her ex-husband after they had exchanged some angry words on the phone and that this occurred “intertwined” with lunch. Ms Rudnik testified that the applicant said during lunch that she should have known after her honeymoon that getting married to her ex-husband had been a mistake. Mr. Sorentino testified that the applicant said that she had married her ex-husband to get out of her parents’ house and that he was a good guy with a good job. He specifically testified that he did not remember everything the applicant said about her ex-husband, nor was the personal respondent’s evidence ever put to him on cross. Again, I do not see this evidence as particularly inconsistent. In any event, to the extent that there are any discrepancies in this regard, I find that they are consistent with what one would expect given the relatively insignificant nature of the applicant’s comments about a non-material matter and the effect of the passage of time on the witnesses’ recollection.

79Other than the evidence regarding the signing of the Employee Information Sheet, the most significant inconsistency in the respondents’ evidence identified by the applicant arises on Mr. Sorentino’s testimony that the personal respondent sometimes joked that he was a “tight ass” (referring to his frugality) in front of staff, whereas the personal respondent testified that he did not call Mr. Sorentino that name in front of staff. The personal respondent did allow for the possibility that someone else might have overheard him calling Mr. Sorentino that. It may be that Mr. Sorentino is honestly mistaken about who was around when the personal respondent called him that name, and that the personal respondent was more careful about that sort of thing than Mr. Sorentino realized. It is also possible that the personal respondent was not as careful in front of other staff as he suggested in his testimony. At the end of the day, this was a minor inconsistency and not directly related to a material allegation in the Application. Even taking it and the other mostly minor inconsistencies pointed out by the applicant into account, I prefer the personal respondent’s evidence to the applicant as being in greater “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

80Accordingly, I find that the personal respondent did not make sexual comments to the applicant or touch her in a sexual manner. Having made this finding, it follows that the applicant did not warn the personal respondent that such comments were unwelcome. Given these findings, I conclude that the respondent did not terminate the applicant’s employment because she confronted him or refused sexual advances. Rather, the preponderance of evidence satisfies me, on a balance of probabilities, that the respondents terminated the applicant’s employment because of their legitimate concerns about the applicant’s work performance. Although she might have been considered a good server elsewhere, the applicant did not live up to the respondents’ expectations. Although she refused to admit to any mistakes whatsoever during the course of her employment, the evidence showed that the applicant made some mistakes over the course of her brief employment and the respondents terminated her employment not as an act of reprisal but because of what they perceived to be legitimate shortcomings in the applicant’s work performance.

81The allegation that the respondents infringed the applicant’s right to be free from sexual harassment in the workplace is dismissed. The allegation that the applicant’s termination constituted a reprisal under the Code is dismissed.

ANALYSIS: REPRISALS FOR FILING HUMAN RIGHTS APPLICATION

82The applicant asks the Tribunal to find that the respondents engaged in reprisals against her in retaliation for her filing an Application with the Tribunal. The applicant alleges that the Tribunal reprised against her in two ways. First, she submits that, through his friend, Joe Mete, the personal respondent threatened the applicant with financial consequences if she pursued her Application before the Tribunal. When that did not work, she submits that the applicant had his lawyer at the time communicate “the same threat”.

Call from Mete

83The applicant testified that, after she filed her Application, in late May 2009, she got a call from a mutual acquaintance of hers and the personal respondent’s, Joe Mete. The applicant testified that Mr. Mete told her that he had heard “a little rumour” about her case against the personal respondent. He denied that he had gotten the applicant’s cell phone number from the personal respondent. The applicant testified that the mutual friend told her to be careful, because if she lost her application in “court”, she could be sued and it could cost her a lot of money. The applicant testified that she concluded that the individual was acting on behalf of the personal respondent and she interpreted the comments as a threat by the personal respondent. She talked to Mr. Mete for about an hour and told him all about what had happened at Casamici. During the call, Mr. Mete offered the applicant a job working for him which she turned down because it was too physically demanding. He said that he would call her back about possible jobs with other employers, but he never did and she was disappointed not to hear from him again because she thought he would help her find a job.

84The evidence did not establish that Mr. Mete was acting as an agent of the personal respondent when he spoke to the applicant about her case. When she gave evidence urging the Tribunal to conclude that the personal respondent was behind the telephone call from Mr. Mete, the applicant testified that she did not know how Mr. Mete had gotten her telephone number, but that he must have gotten it from the personal respondent. However, the applicant later revealed that her ex-husband, with whom she testified she has an “excellent” relationship, was working with Mr. Mete. Mr. Mete might just as easily have gotten the applicant’s cell phone number from her ex-husband as from the personal respondent. The applicant did not refute this possibility when she testified, nor did she call her ex-husband as a witness to refute this possibility. The mere fact that the personal respondent had the applicant’s cell phone number and that Mr. Mete called the applicant at that number is not a sufficient basis for me to conclude that the personal respondent gave Mr. Mete the applicant’s cell phone number and enlisted him to help retaliate against the applicant for filing an Application with the Tribunal.

85Nor can I infer that the personal respondent was behind Mr. Mete’s call simply because of the nature of the call. It may have been that Mr. Mete heard about the Application from someone and took it upon himself to call, since he had known both the applicant and the personal respondent for a long time. This is consistent with the applicant’s testimony that Mr. Mete said to her, “It doesn’t sound like the Emanuela and Dino I know.” I do not doubt that Mr. Mete was motivated by a desire to help out the personal respondent. However, that does not mean he was acting at his behest. The personal respondent testified that Mr. Mete called him after he had spoken to the applicant to tell him what was going on and that is when he learned about Mr. Mete’s call to the applicant. The personal respondent testified that he told Mr. Mete that he appreciated what he was trying to do but that he could get him into a lot of trouble. He asked him not to get involved. The fact that Mr. Mete then did not call the applicant back lends support to the personal respondent’s evidence in this regard.

86The applicant has not proved that the Mr. Mete threatened her on the personal respondent’s behalf. I therefore dismiss the allegation that the personal respondent reprised against the applicant through Mr. Mete.

June 18, 2009 letter from respondents’ counsel

87Subsequent to the filing of the Application, the respondents’ counsel at the time (who was not the counsel who represented them at the hearing) wrote the applicant’s counsel a letter in which he asserted that the applicant had “continued to slander and malign” the respondents in the community, with a negative impact on the respondents’ business and on the personal respondent. The respondents’ former counsel also stated in his letter that if the applicant did not “discontinue” the Application and provide a written apology to the respondents confirming there was no basis for the applicant’s sexual harassment allegations, the respondents would commence a civil action for defamation and other causes of action against her. The letter also threatened to seek costs against the applicant in the proceeding before the Tribunal.

88The applicant submits that the content of the June 18, 2009 letter constitutes a reprisal against the applicant by the respondents, contrary to the Code. She contends that the respondents’ threat to bring a civil suit against her was intended to intimidate the applicant and to dissuade her from pursuing her human rights.

89The respondents make four submissions in support of their position that I ought to dismiss the claim that the June 18, 2009 letter constituted a reprisal by the respondents against the applicant, contrary to the Code. First, they submit that the letter was a communication from respondents’ counsel acting in the scope of his duties to his client and in preparation for or in relation to ongoing judicial proceedings and is therefore protected by absolute privilege and may not found a claim under the Code. In addition, the respondents submit that the letter is protected by settlement privilege and may not found a claim under the Code for that reason. They also submit that written notice of a civil suit based on defamatory comments by the applicant in the community at large is not evidence that the respondents intended to retaliate against the applicant for filing a human rights application, and therefore cannot be found to constitute a “reprisal” within the meaning of the Code. Finally, they submit that the Tribunal should not allow the applicant to rely on the respondents’ lawyer’s actions to establish a breach of the Code, since to do so would require the respondents to call their lawyer as a witness and waive solicitor-client privilege. They submit that putting the respondents in a situation where they are required to waive solicitor-client privilege in order to defend themselves is contrary to public policy.

Absolute Privilege

90Absolute privilege is a common law principle which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi-judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public’s interest in the orderly and effective administration of justice.

91The absolute privilege which protects legal counsel is intentionally broad: Munster v. Lamb, (1883), 11 Q.B.D. 588 (Court of Appeal, U.K.). Were it otherwise, the threat of lawsuits might dissuade legal counsel from fulfilling their role in the justice system:

Counsel have a professional duty to pursue their clients’ interests within the law, to the fullest extent possible. At times, a lawyer finds himself or herself advocating unpopular causes. Our system of justice depends upon courageous lawyers undertaking cases that may be distasteful to the public at large, and to the lawyer personally. Nonetheless, the Bar does so, often without thanks from society that does not appreciate the importance of this task. But it is this professional responsibility to argue the law that ensures our democratic freedoms continue. Our system of law would be rendered ineffectual if counsel was required to look behind them (sic) for fear of a lawsuit as a result of presenting his client’s case. This is the mischief that the privilege seeks to prevent. (Big Pond Communications 2000 Inc. v. Kennedy (2004), 2004 CanLII 18758 (ON SC), 236 D.L.R. (4^th) 727, at para. 19, as cited in Hanmouth v. Stuart Video Technologies Inc. (2005), 2005 BCCA 172, 253 D.L.R. (4^th) 372 at para. 38)

92Absolute privilege will protect not only the lawyer, but also her clients, from legal proceedings which are based on statements made by the lawyer while representing her clients in respect of contemplated or ongoing legal proceedings. (Getz v. Opseth, 2005 SKQB 69) Were it otherwise, the mischief which absolute privilege seeks to address would persist, since legal counsel would be hampered in the execution of their professional duties if their statements could expose their clients to liability.

93Absolute privilege applies not only to statements made in court but to all statements made in pleadings. The “privilege against suit for allegations in pleadings is not qualified in any way.” (Big Pond Communications 2000 Inc., supra, at para. 12).

94The law of absolute privilege does not say that any thing a lawyer may do or say in the name of her client is privileged. Rather, in order for absolute privilege to attach to a statement, the statement must be made by legal counsel in the representation of a client and reasonably related to actual or contemplated judicial or quasi-judicial proceedings.

95In this regard, the Ontario courts have also applied the doctrine of absolute privilege to quash legal proceedings based on letters written with respect to proposed or contemplated judicial proceedings. In Dingwall v. Lax (1988), 1988 CanLII 4716 (ON HCJ), 63 O.R. (2d) 336, the Ontario High Court of Justice held that absolute privilege extended to statements which were “intimately connected to a judicial proceeding the initiation of which was being seriously considered by the defendants.” The court indicated that “the privilege extends to all preparatory steps taken with a view to judicial proceedings.” (Dingwall, supra, at para. 16)

96Where a lawyer’s statement is protected by absolute privilege, an adjudicator ought not to consider whether the statement would be illegal were it not protected by absolute privilege. Absolute privilege prohibits legal proceedings based on the statement, whether or not the statement is illegal, to ensure that legal counsel has a mind “clear from all anxiety” when fulfilling her role in the administration of justice. (Munster, supra, at 603)

97Although absolute privilege is perhaps most often applied to protect against defamation suits, the privilege is not limited to that kind of suit:

It matters not whether the action is framed in libel or slander, in defamation, intentional infliction of mental suffering, intentional interference with economic interest or abuse of process, to the extent that any action is based upon statements in a pleading, the claim will disclose no reasonable cause of action. Otherwise expressed, the action has no reasonable chance of success in law, and to permit it to continue would constitute an abuse of the process of the court. (Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON CTGD), 19 O.R. (3d) 779 (Gen Div.), at 788, as cited in Big Pond, supra, at para.13)

98The question is whether absolute privilege also applies in the human rights context. Where there is common law immunity from legal proceedings generally, I can see no principled basis upon which to conclude that it ought not to also apply in the human rights context, even bearing in mind the paramountcy of human rights legislation and the quasi-constitutional nature of human rights legislation. Indeed, the Tribunal has previously held that common law immunity from legal proceedings, such as judicial immunity (Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered, 2009 HRTO 2180), prosecutorial immunity (Oliphant v. Ontario (Attorney General), 2009 HRTO 1902) and parliamentary privilege (Freitag v. Penetanguishine (Municipality), 2009 HRTO 1712, will deprive the Tribunal of jurisdiction over allegations against the immune party.

99More to the point, the Tribunal has previously dismissed allegations which were based on statements protected by absolute privilege. In Carlos v. 1174364 Ontario, 2009 HRTO 311, the applicant alleged that the respondent building manager issued her notices of eviction under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, because she objected to his sexual solicitation and sexually demeaning comments. She also alleged that the notices themselves contained sexually demeaning comments. The Tribunal held that absolute privilege attached to the notices of eviction and that they could therefore not be relied upon to found a breach of the Code.

100In this case, the applicant relied on two cases for the proposition that the threat of civil litigation may constitute a reprisal under human rights legislation: Ketola v. Value Propane Inc. (No. 1) (2002), 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20 (Ont. Bd. Inq.) and Curling v. Torimiro (No. 2), (1999), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468 (Ont. Bd. Inq.)

101In Ketola, the adjudicator held that threatening to sue a human rights complainant may constitute a reprisal or threat of reprisal, depending on the intent behind the civil action and whether a reasonable complainant would perceive it as retaliation or punishment. At the same time, he recognized that civil suits may be legitimate and bona fide and “to automatically find otherwise would deprive one from exercising those rights available in the civil litigation context” which “could be disastrous … when limitation periods apply” (at para. 120)

102In Curling, the Board of Inquiry found that the reprisal sections of the Code prevented the respondents from suing the complainant for defamation based on the statements in her complaint to the Ontario Human Rights Commission and that it would be contrary to public policy “for a complainant to be vulnerable to a civil proceeding on the basis of his or her filing of a human rights complaint.” (at para. 86)

103Whether absolute privilege attached to the threat or initiation of civil action and therefore prevented the complainants from relying upon those things to found a claim under the Code appears not to have been argued or considered in Ketola and Curling. Although these cases are therefore of somewhat limited assistance in this case, they do raise some important considerations.

104I agree with the adjudicator in Curling that it would be against public policy for complainants in human rights cases to be vulnerable to defamation proceedings simply because they have sought to pursue their rights under the Code by filing an Application with the Tribunal. However, in my view, it is absolute privilege which protects applicants from being sued for what they have pleaded in their Applications, rather than the reprisal sections of the Code. (Carlos, supra, at para. 16).

105From a public policy perspective, the doctrine of absolute privilege arguably gives greater protection to applicants from civil actions than the reprisal provisions of the Code. This is because a finding of reprisal under the Code will always require the applicant to show that the respondent intended to retaliate against the applicant for pursuing her rights under the Code by threatening or bringing a civil action. This is not so with absolute privilege, which protects all applicants from being sued because of statements made in their applications to the Tribunal, whatever the intent behind the lawsuit.

106Like the adjudicator in Ketola, I agree that the threat of civil action cannot automatically constitute an act of reprisal under the Code, since that would deprive respondents of their civil rights. However, the underlying premise in Ketola and Curling is that the Tribunal ought to determine whether the threat or commencement of a civil action constitutes a reprisal on a case-by-case basis, having regard to the bona fides of the respondent. Undertaking such an inquiry, it seems to me, would require the Tribunal to consider the merits of the civil action, which would arguably be outside the Tribunal’s jurisdiction and probably incompatible with the fair, just and expeditious resolution of applications.

107This case is also unlike Ketola and Curling because, in those cases, the civil actions were based on the content of the human rights complaints which had been filed. Here, the respondents threatened to bring a civil action in response to the applicant’s alleged defamatory remarks about the respondents in the community which were damaging to their reputation and business.

108In this case, counsel for the respondents threatened to commence a civil action against the applicant based on her alleged defamatory remarks about the respondents in the community unless the applicant retracted her sexual harassment allegations. It is precisely the threat to initiate legal proceedings which the applicant submits constituted a threat of reprisal for having filed a human rights Application, contrary to the Code. The letter was written by legal counsel in the course of representing his clients, the respondents. It was directly related to a proposed legal proceeding, namely a civil suit for defamation and other causes of action. Applying the applicable legal principles to the facts of this case, I find that absolute privilege attaches to the June 18, 2009 letter. The applicant is therefore prevented from pursuing allegations under Code which are based on the letter and the reprisal claim which is based on the June 18, 2009 letter is dismissed accordingly.

109Having found that absolute privilege prevents the applicant from pursuing a claim under the Code based on the June 18, 2009 letter, it is not necessary for me to consider the other arguments advanced by the respondents.

CONCLUSION

110Having carefully considered all of the evidence, I find that the personal respondent did not make the alleged sexual comments to the applicant or touch her in a sexual manner, nor am I persuaded that the respondent terminated the applicant’s employment for any reason other than concerns about her work performance.

111With respect to the alleged reprisals following the filing of the Application, there is insufficient evidence to conclude that Mr. Mete called the applicant as an agent of the personal respondent. The allegation that the respondents reprised against the applicant through Mr. Mete is dismissed.

112With respect to the June 18, 2009 letter from then counsel for the respondents to counsel for the applicant, I find that the letter is covered by absolute privilege and it may therefore not form the basis of an Application under the Code.

113The Application is dismissed.