HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Frolov
Applicant
-and-
Mosregion Investment Corporation
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Frolov v. Mosregion Investment Corporation
APPEARANCES BY:
David Frolov, Applicant ) Self-Represented
Mosregion Investment Corporation, Respondent ) Igor Bakouchev,
) Representative
INTRODUCTION
1The applicant filed an Application on July 15, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”), alleging harassment on the basis of sexual solicitation or advances in employment by a female co-worker (“the co-worker”) contrary to the Code, as well as a failure of the respondent to investigate into his allegations. Initially, the co-worker was named as a personal respondent. The co-worker also filed an Application, naming the respondent and the applicant as respondents and alleging that she was subjected to sexual solicitation and sexual harassment.
2Because the co-worker was removed as a party to this Application during the hearing, as discussed below, she will not be named or otherwise identified in this Decision.
3While the applicant only identified “sexual solicitation or advances” on his Application form (which is section 7 of the Code), during the evidence and in their submissions, both parties made numerous references to the applicant being “sexually harassed” by the co-worker. The combined effect of Rules 1.5 and 1.7(c) allows the Tribunal, on its own initiative, to amend any filing. Accordingly, the Tribunal amends the Application to include harassment on the basis of sex under section 5(2) as a ground being advanced by the applicant, in addition to sexual solicitation under which the Application was already filed.
Background
4The applicant’s and the co-worker’s Applications were scheduled to be heard together pursuant to an Interim Decision, 2008 HRTO 135. The hearing into both Applications commenced in February 2009. While the co-worker participated, the hearing was a heated and fractious one and the parties raised numerous preliminary issues that resulted in 4 additional Interim Decisions and a Case Assessment Direction being issued. The respondent requested, several times, that the hearing be adjourned for some dates that were scheduled in April 2009, which the Tribunal granted. The applicant was unable to attend several hearing dates (June 29 and July 3, 2009) because he was reportedly ill and hospitalized in another country which resulted in those dates being adjourned. Additional hearing dates were scheduled.
5The applicant participated at the hearing on his own, and, as he required, through Russian interpretation services that were provided by the Tribunal. The parties electronically recorded most of the hearing.
6Part of the way through the hearing, the applicant, the respondent and the co-worker reached a settlement with one another, the details of which were not provided to me. The applicant provided the Tribunal with a letter dated November 27, 2009 advising that he was irrevocably withdrawing his Application against the co-worker and consenting to her removal as a party to the proceeding. The co-worker and the respondent signed the letter giving their consent to the withdrawal. The Tribunal granted leave to withdraw the Application as against the co-worker and the hearing continued without the co-worker’s participation. With respect to the co-worker’s Application, the parties were able to resolve the issues in dispute and a Form 25, Confirmation of Full Settlement, was filed with the Tribunal.
7Going forward with this hearing both parties confirmed, in response to questions from the Tribunal, the co-worker would not be called as a witness. The respondent did not assume liability for the alleged actions of the co-worker. The co-worker did not testify.
8The evidence that had been tendered prior to the withdrawal and settlement (the applicant’s evidence) and the documents entered as exhibits to that point, remained part of the record of this proceeding. The hearing continued with further cross-examination of the applicant by the respondent, and evidence from Igor Bakouchev, and Alexandra Tomorskaya. The Tribunal also admitted evidence from the applicant’s children in the form of interviews conducted and recorded by the applicant. Documents that had been disclosed to the Tribunal, but not admitted as exhibits, have not been considered in issuing this Decision.
9For the reasons set out, I have determined that the respondent violated the applicant’s rights under the Code when it failed to adequately investigate into the applicant’s allegations of sexual harassment and sexual solicitation.
The Legal Effect of Withdrawing the Application against the Co-worker
10In York Advertising Ltd. v. Ontario (Human Rights Commission), 2005 CanLii 15469 (ON S.C.D.C.), the Divisional Court considered the legal effect of a settlement of a complaint against some but not all the named respondents to a human rights complaint.
11The Human Rights Tribunal of Ontario had issued a decision in which it made adverse findings of fact against the respondents with whom a settlement had been reached prior to the referral of the complaint to the Tribunal and concluded that these respondents violated the Code. In granting the application for judicial review of that decision brought by those respondents, the Divisional Court, at para. 21, held:
In the circumstances of this case, the applicants were entitled to assume that, once the terms of the settlement reached had been fully finalized, they could safely disengage themselves entirely from the complaints process without fear of being in jeopardy of being the subject of adverse findings and conclusions by the Tribunal. It would be incomprehensible, and contrary to law, that a statutory procedure for the resolution of human rights complaints in Ontario could lead to findings of wrongdoing against a party who had been released from the complaints process through a settlement, and who had no formal notice of the hearing, was not a party to it, and did not participate.
12In Chard v. Newton, 2007 HRTO 36, the Tribunal confirmed this principle, when, at para. 5, it accepted that it could not make findings against a company and general manager because they were not parties to the proceeding, although they had initially been named as respondents in the complaint.
13In the circumstances following the completion of the hearing in this Application, I issued a Case Assessment Direction to the parties, attaching copies of both decisions discussed above, and asked the parties to provide submissions on the legal effect of the co-worker being removed as a party to the Application in relation to the Tribunal’s ability to determine whether or not the applicant was sexually harassed and/or sexually solicited by the co-worker. The respondent provided submissions by email dated August 12, 2010, but the applicant did not and the time for doing so has elapsed.
14The respondent took issue with the amount of time that it was taking for the Tribunal to issue its decision. The respondent submitted:
We consider this request as another evidence that the Tribunal continues to delay the case as much as possible with or without [co-worker’s counsel]. The Tribunal uses all highly paid and very skilled professionals, government funding and all possible resources at its disposal to dodge the responsibility of issuing a just and fair decision, because it would contradict the Tribunal’s decision making pattern which is only women are sexually harassed and only men are sexual harassers. Disregarding all the facts, evidence and witness testimony.
We reiterate: [Co-worker’s] removal from the case DOES NOT CHANGE THE FOLLOWING FACTS.
Mr. Frolov was harassed by [co-worker] for a considerable period of time. The company did not believe Mr. Frolov’s complaints and did not respond properly for a period of time.
After Mr. Frolov filed his complaint and produced hard evidence of being sexually harassed by [co-worker], and after the company became aware of [co-worker’s] dating website where she was preying on rich men to date, and after the company discovered that [co-worker] stole confidential information and threatened to destroy the company business while still working for the company, we took measures to remove [co-worker] from the premises and resolve the situation.
The company admits its fault and is ready to accept the consequences as stated in our submissions to the Tribunal.
15In this case, the applicant irrevocably withdrew his Application against the co-worker, who had initially been named as a personal respondent, and the parties consented to her removal as a party to the Application. The hearing continued without further involvement of or notice to the co-worker, who was not called or subpoenaed as a witness by either party. The respondent did not accept liability for the conduct of the co-worker. Following the conclusion set out in York Advertising Ltd., supra, the Tribunal is not making, and indeed cannot make, findings against the co-worker because she was no longer a party to the Application and did not testify. The Tribunal’s findings are based solely upon the evidence that it heard and the documents that were entered as exhibits.
The Parties
16During the time period relevant to the Application, the respondent operated out of a 2 bedroom condominium unit located in Toronto. There were, during the relevant time periods, 4 individuals who worked for the respondent: the applicant, Igor Bakouchev, the co-worker, and Alexandra Tomorskaya.
17The applicant holds the position of project manager and oversees the financial aspects of the respondent’s business, having received an MBA from the University of Toronto and graduating in the top 1% of his class. He conducts business on behalf of the respondent and frequently travels internationally, including to Russia. He was a signing officer of the respondent. Mr. Bakouchev is the owner and director of the respondent. The co-worker’s position was titled Financial Analyst and she was the lowest paid employee. Ms. Tomorskaya was trained a lawyer in Russia, but not licensed as one in Ontario, and was involved with the respondent’s legal paperwork.
18The Tribunal heard evidence from the applicant, Mr. Bakouchev and Ms. Tomorskaya, who was called as a witness by the applicant. The applicant was under cross-examination by the co-worker’s counsel when the co-worker’s participation in the hearing and this Application ended.
Applicant’s Evidence
19Initially the applicant wanted to read his evidence through a written statement that he prepared. The Tribunal gave the parties copies of Chard v. Newton, supra, to review, and subsequent to reviewing the decision, the applicant decided to give viva voce evidence. Most of his testimony was through an interpreter.
20In various parts of his Application, the applicant identified the co-worker as his subordinate. He alleged, in response to question 8 “What Happened”, “I was denied protection from sexual solicitation and advances from my subordinate [sic]…” In Part II, he alleged, “I complained to the company owner about the sexual advances of my subordinate…..” and later “I was accused of sexual harassment for refusing a Sexual Solicitation or Advance from my subordinate”. During his testimony, however, the applicant claimed that the co-worker was not his subordinate, but was “partially a subordinate”. He would supervise her if no one else was working and if another person came into the room, then the other person would supervise the co-worker.
21The applicant testified about a vacation that he took in May 2008 to Victoria, British Columbia to visit his children and to sell a house that he owned there. He testified that the co-worker arrived unexpectedly in British Columbia, called him from the Vancouver airport and wanted to stay with him. A short while before she arrived, he said he had transferred money into her bank account so she could buy a plane ticket, he said, to Florida to visit her mother. In cross-examination, he denied knowing she was coming to Victoria and disagreed that telephone conversations held between the two of them on May 1 were to discuss flight information to Victoria. During their discussion from the Vancouver airport, the applicant decided that she could assist him with the preparation and sale of his house. They agreed that because of her interest in a career in real estate, she would assist him in looking after the applicant’s children and selling the house. The applicant told her that he would give her $1,000 if she helped him sell his house, she would have to leave the day after the house sold and she would have to stay at the listed house. The co-worker agreed and flew to Victoria. Upon arrival, and because of her concerns about staying alone, the co-worker stayed with the applicant and his children.
22The applicant testified that it was during this trip to British Columbia that the co-worker sexually solicited him. The applicant’s theory of his case was that the co-worker was seeking a husband or partner who spoke Russian, was well educated, and had a good income and that he fit this profile. In light of my findings that the Tribunal cannot determine whether or not the co-worker sexually solicited or sexually harassed the applicant, I will not describe the details of the alleged sexual harassment.
23In June 2008, having sold his house, the applicant returned from British Columbia and returned to work. On his first day back at work, he approached Mr. Bakouchev and told him that the co-worker had sexually solicited him and that he had problems working with her. Mr. Bakouchev did not take his concerns seriously. Instead, Mr. Bakouchev told him, “you must be joking” and “you should be pleased that she pays you attention”. Because his concerns were not being taken seriously, he presented Mr. Bakouchev with a letter dated June 4, 2008 referencing the respondent’s anti-harassment policy and detailing 9 examples of the co-worker’s alleged sexual harassment of him, 5 of which were from April 2008 and 4 of which were from the trip to Victoria. He concluded his letter by stating:
I request that you take immediate measures and start investigation in this matter. From now on I prefer to communicate with her by e-mail or over the phone to avoid any possibility of a physical contact.
24Mr. Bakouchev signed the letter, but did not do anything. Instead, as June 4 was the co-worker’s birthday, Mr. Bakouchev told him to be nice to the co-worker and to give the co-worker a birthday card. The applicant gave her a card, which he had previously bought intending to give it to his partner, on which he wrote “…I wish you be happy, be loved and …Happy birthday. D… June 04, 2008”. He also gave her a bank draft for $999 as payment towards her assistance with the sale of his house. He testified that she returned the bank draft because it was not enough. The applicant also called the co-worker on her cell phone that evening to wish her a happy birthday and to decline her invitation to go to dinner with her at a restaurant.
25The co-worker’s conduct continued towards him, the applicant speculated, because Mr. Bakouchev took no steps to stop it.
26Shortly after his return to Toronto, the applicant rented a boat to take Mr. Bakouchev and Ms. Tomorskaya around the lake to celebrate the sale of his house. Mr. Bakouchev insisted that everyone in the office, including the co-worker, participate or none would be permitted to attend. The applicant paid for lunch for everyone, at Mr. Bakouchev’s insistence, and then operated the boat around Lake Ontario.
27The applicant’s allegations about the boat ride on Lake Ontario, and the co-worker’s alleged conduct on the boat, are obviously important to the applicant. However, they do no bear on the conclusions reached in this Decision and accordingly I have not set them out.
28The applicant submitted another letter to Mr. Bakouchev, dated June 27, 2008, in which he repeated some of the allegations set out in his June 4 letter. The allegations about the boat trip are not mentioned. In the letter he also stated that the co-worker gave him some sexually explicit presents. The applicant demanded that Mr. Bakouchev fire the co-worker. The applicant did not want to change work locations because of the volume of documents that were part of his job and that would require moving.
29In the June 27 letter, the applicant wrote:
She usually engages into these behaviours when no witnesses are around. These behaviors [sic] escalated when [co-worker] visited my house in …B.C. She spent four days helping me to sell the house for about $500,000 and now she is demanding that I pay her $50,000 or 10 per cent. I promised and I paid her $1,000 for her help at her birthday on June 6, however, she thinks that it’s not enough. She threatens me that if I don’t pay her $50,000 soon, she would to bring me to court to get $100,000.
I request that you take immediate measures and start investigation in this matter. I also request that you place me and [co-worker] in different offices so that she could not harass me anymore. I refuse to supervise her work effective immediately. If she needs to contact me I prefer to communicate with her by e-mail or over the phone to avoid any possibility of a physical contact. During the investigation I will be friendly and polite to [co-worker], but I am afraid that she might interpret this as that her advances are working on me.
30The applicant testified that he thought about looking for another job and quitting, but he would lose a significant bonus that would become payable to him upon completion of a long term project that was based in Russia. Despite receiving the second letter of complaint, Mr. Bakouchev did not conduct an investigation.
31On July 4, 2008 the applicant received an email that appears to be from the co-worker’s personal email address, written in English and Russian, in which sexual acts to be performed on the applicant are described in detail. The Tribunal received the originally worded email as well as a translated copy. A .jpeg picture of the co-worker in a bikini appeared at the bottom of the email. The email also requests money and makes threats to allege sexual harassment and sexual assault if the applicant did not pay money to her.
32On July 5, 2008, the applicant sent the co-worker an email. It provided details of a monetary transfer between their bank accounts and stated:
As you asked I sent you $500. I unde[r]stand your current family situation and will try to provide you additional support. However, the only thing that I need in return from you is your ability to work at least 170 hour monthly compare[d] to 120 hours monthly now.
The applicant testified that he sent the co-worker this money because he was trying to help out a person in need.
33Following receipt of this email, the applicant sent the respondent a letter dated July 7, 2008 and received on July 8, 2008. The letter stated:
RE: Extortion, blackmail threats and sexual demands by [co-worker]
Dear Mr. Bakouchev,
As I already mentioned in my previous complaint of June 4, 2008, according to our company’s anti-harassment policy of January 8, 2007, it is your responsibility to provide a safe and welcoming environment free from harassment.
[Co-worker’s] behaviour became completely intolerable to the point that I have to act to protect my rights, my life and my reputation. Since you did not take any effective actions on my previous complaints I intend to file a sexual harassment lawsuit against you and [co-worker].
[Co-worker’s] intentions and demands are best described in her e-mail to me last Friday July 4, 2008. I request immediate and decisive actions on your part. If you fail to act I will turn to the police.
I consider her actions give sufficient grounds to terminate her employment immediately on the grounds of misconduct. I strongly disagree with her presence at our office and request to move her to the new office at [location]. Under no circumstances I will share the same office space with [co-worker] anymore.
If no immediate actions are taken, please consider this letter my resignation notice from the company. I ask you to confirm the receipt of this letter by putting your signature and date on the same.
34After receiving the third complaint, the respondent commenced an investigation. Mr. Bakouchev was not neutral in his investigation as he had previously favoured the co-worker in dismissing the applicant’s stated concerns. Instead of focussing the investigation on the co-worker’s alleged conduct, it was improperly focussed on the applicant being the perpetrator of sexual harassment to the co-worker rather than the reverse. Mr. Bakouchev requested that the applicant attend a meeting with the co-worker and Mr. Bakouchev to discuss these issues. The applicant was reluctant to meet with the co-worker, but stated that if they were going to meet it be in a public place. The meeting was held in a local coffee shop. The applicant attended and left after 5 minutes. During the meeting, the co-worker told Mr. Bakouchev and the applicant that she had retained legal counsel.
35The applicant filed his Application on July 15, 2008, he testified, to protect his rights, to have his work environment free from sexual solicitation and sexual harassment and to clear his name, his reputation and his character.
36The applicant testified about the impact that the co-worker’s conduct and the respondent’s failure to investigate had on him and on his family life. He submitted medical documentation dated September 2, 2009 about treatment for depression. He testified that after his filed his first complaint and was told to put up with the co-worker’s conduct, he felt like there was nothing he could do. He found it harder to concentrate on his work and started coming into work later and later to avoid the co-worker. As a result he worked later into the evening which strained his relationship with his partner. His privacy felt violated. He felt that everyone blamed him but not his co-worker and he did not know where to turn. He could not quit because of the significant bonus he would lose if he quit at that point. Eventually he filed his Application because he had “no other choice but to file his complaint and to protect his rights”. He participated in the co-worker’s employment insurance proceedings to “clear his name, his reputation and his character was in question”. He was concerned about the impact of the co-worker’s trip to Victoria on his children and his children’s mother.
37In his final submissions, he wrote:
I suffered humiliation, hurt feelings, loss of self-respect, dignity, self-esteem and confidence. I experienced victimization and felt vulnerable. The seriousness, frequency and duration of the offensive [sic] resulted in my medically documented depression, and negatively affected my professional and family life.
As a result of all these factors, I find that the investigation was biased in favour of [the co-worker]. This could have been avoided if the investigation had been conducted by outside counsel, or some other neutral third party. However, I appreciate that Mr. Bakouchev during his testimony admitted that Mr. Frolov was indeed sexually harassed by [the co-worker].
38The applicant seeks remedies in the amount of $95,000.
Igor Bakouchev’s evidence
39Mr. Bakouchev is the owner, director and sole shareholder of the respondent. Mr. Bakouchev testified that the applicant expressed concerns about the co-worker’s behaviour in 2007 while she was previously employed with the respondent. In April 2008, and after the co-worker had been rehired for some months, the applicant complained to Mr. Bakouchev that the co-worker was making advances to him. Mr. Bakouchev did not believe the applicant because the co-worker was a newcomer to Canada, as he had once been, and was experiencing a hard time. He thought the applicant was exaggerating and told the applicant that he should not be tough on the co-worker but to be friendly and help her because her experiences has not been good. The applicant agreed to help the co-worker. The applicant did not ask Mr. Bakouchev to investigate or address the conduct.
40A week or so after the applicant went on vacation to British Columbia, the co-worker did not report for work. Mr. Bakouchev attempted to contact her on her cell phone but no one answered. After several days, he spoke with the co-worker by cell phone and asked where she was. She replied that she was with the applicant, was not coming into the office and he should speak with the applicant. She hung up and didn’t answer her phone when he tried calling again. Mr. Bakouchev later spoke with the applicant about the co-worker not being in the office and they had a brief conversation during which time the applicant stated he had not called Mr. Bakouchev during his vacation, and Mr. Bakouchev should not call him during his vacation. The applicant told Mr. Bakouchev that he would explain everything when he was back in the office. When the applicant and the co-worker were back in the office, they advised Mr. Bakouchev that the situation was none of his business.
41When the applicant arrived back in Ontario, he told Mr. Bakouchev about the conduct to which he had been exposed by the co-worker and presented Mr. Bakouchev with the June 4, 2008 letter. Mr. Bakouchev testified that the respondent had nothing to do with the applicant’s vacation in British Columbia or the sale of his house in that province. The respondent is located in Ontario and has dealings with Russian businesses in Russia.
42While the applicant and the co-worker were in British Columbia, the respondent continued to pay the co-worker’s salary. After she returned to Ontario, the money that had been paid to her while she was in British Columbia was deducted from her salary.
43When he received the June 4, 2008 complaint, Mr. Bakouchev “couldn’t believe it” and “didn’t believe” the applicant. Mr. Bakouchev told the applicant that the co-worker was having a falling out with her husband and instructed the applicant to do something nice for her birthday, like give her a birthday card. In the respondent’s Response, Mr. Bakouchev wrote, “June 4 is [the co-worker’s] birthday and I decided not to spoil it by asking inconvenient questions. She looked very happy and her coworkers presented her birthday cards and flowers. On June 6, 2008 she advised that she was leaving on another vacation to Florida from June 7 to June 16, 2008, and she did not need to ask my permission to leave because it was authorized by Mr. Frolov”. She did not work from June 9 until her return to work on June 16. Mr. Bakouchev testified that he could not investigate into the allegations in the June 4 letter because the co-worker was on an unauthorized vacation.
44Upon her return, Mr. Bakouchev sent the co-worker an email in Russian dated June 16, to which she did not respond. The June 16 email, translated into English, stated:
It is our company policy that every employee’s vacation has to be approved by management in writing. I don’t have any records that your vacation on June 9 – June 13 was requested and approved in writing.
Therefore, please provide a written and signed explanation when you requested the vacation and who approved it. Please attach a copy of your request for vacation and approval.
45Mr. Bakouchev testified about the boat ride around Lake Ontario, but, as stated above, because the boat ride does not bear on the conclusions reached in this Decision, they are not set out. Mr. Bakouchev’s impression, at that time, was that the applicant did not behave appropriately.
46The applicant provided Mr. Bakouchev with the June 27 letter after the boat ride around Lake Ontario. During his testimony, Mr. Bakouchev said that he did not remember exactly what had happened after receiving this letter, and in retrospect he “should have done something about the second letter”. However, he waited some time because he was not sure what to do and because he had never dealt with this type of situation before. He has not received training on human rights issues.
47In the Response, the respondent described the end of June 2008 as follows:
[The co-worker’s] contract was to expire on August 13, 2008. I instructed Mr. Frolov to conduct an assessment of [the co-worker’s] performance and discuss the conditions of her contract extension. I told Mr. Frolov to stop complaining, to be a reasonable man and told him that [the co-worker] was always happy to work with him. I ordered him to assess her performance by July 7, 2008 and negotiate contract extension with [co-worker] on her terms…..
On July 7, 2008, Mr. Frolov advised me and [co-worker] of his very negative assessment of [the co-worker’s] performance and recommended me not to extend her contract.
48Mr. Bakouchev instructed the applicant to conduct the performance appraisal for the co-worker because he was “busy”, didn’t have time to perform one and thought that it was appropriate that the applicant conduct one on the co-worker. The co-worker’s employment contract was due to expire in mid-August and the respondent was not going to renew the contract. The Response stated that the applicant was the co-worker’s supervisor (along with another individual when he used to work for the respondent). In response to a question from the Tribunal whether the applicant was the co-worker’s supervisor, Mr. Bakouchev testified “it’s not a yes or no [answer] and she reported to everyone” and then he confirmed that the applicant was one of the co-worker’s supervisors. In a letter to the Employment Insurance Commission about the co-worker, Mr. Bakouchev indicated that the co-worker met with “officers” of the company in a meeting in July, with “officers” meaning himself and the applicant.
49On July 7 Mr. Bakouchev received the applicant’s third letter with the July 4, 2008 email from the co-worker’s email. When he read the email he was “completely shocked” “was at a loss” and “didn’t know what to do”. He decided that he needed to get the co-worker’s side of the story, so he sent her an email, dated July 9. This was the first time he had taken action about the applicant’s allegations, despite having read the June 4 and June 27 letters of complaint. Mr. Bakouchev’s July 9 email to the co-worker stated:
It has been brought to my attention that you have been making some conflicting statements on alleged workplace harassment and/or abuse on the part of some employee of our company. The company policy is that this matter must be taken very seriously and immediately.
If there have been actions on the part of an employee of this company including myself that you have interpreted as harassment and/or abuse I request that you report it in writing by 3 pm July 10, 2008. We will contact police and/or other appropriate agencies to start investigation.
Otherwise, if your statements and/or comments regarding alleged workplace harassment and/or abuse have been misinterpreted, please sign the attached statement in two originals in front of a notary public and bring it to me by 3 pm July 10, 2008. You are free to meet a notary any time during your work hours. No notice of absence is required. Once the two notarized statements have been presented to me we will consider this matter resolved to everyone’s satisfaction.
50Attached to the email was a document called “Notarized statement”. It said:
I, [name of co-worker], have been employed by Mosregion Corporation Corp., Toronto, Ontario, Canada, since August 13, 2007 as a financial analyst.
I am fully aware of the definitions and signs of workplace harassment. I hereby state that I have not experienced any form of any form [sic] of discrimination, including based on age and race, as well as any kind of harassment, including Bullying, Stalking, Mobbing, Hazing, as well as Psychological, Racial, Religious and Sexual harassment from employees, and managers and owners of the Mosregion Corporation Corp.
This statement is given at request at the management of the company on my free will and without any pressure.
51The co-worker would not provide any answers to Mr. Bakouchev and told him that she was not going to tell him anything. Mr. Bakouchev told the co-worker that he would have to make a choice, to keep either her or the applicant and that he wanted to keep them both. As a solution Mr. Bakouchev offered to transfer the co-worker to a new office space he had recently rented within the same area of the city, but the co-worker refused to work at the other location and would not tell him anything.
52The co-worker did not sign the notarized statement and did not provide a response to Mr. Bakouchev’s July 9 email. She retained counsel, with whom Mr. Bakouchev corresponded several times. Because the co-worker is not a party to this Application, the details of those communications need not be set out here. I note, however, that the evidence that I heard at the hearing and the documents that were provided prior to and during the hearing, are at odds with some of what Mr. Bakouchev has submitted at para. 2 of his August 12, 2010 email submissions. Eventually the co-worker filed her Application, as described in para. 1. The co-worker did not return to the workplace after July 9, 2008.
53Mr. Bakouchev testified, “I could not force [the co-worker] in July 2008 to provide a written statement of the events and I had to rely upon other means to obtain that information”. After the co-worker failed to return to work, and later in July, he looked through her work station and printed information off of her computer. He asked the respondent’s employees to report to him if the co-worker communicated with them.
54He obtained written statements from the other employee, Ms. Tomorskaya, and from former female employees, pertaining to sexual harassment in the workplace. He contacted a former male employee, who did not provide a written statement because he did not want to get involved. The written statements, which are dated between August to December 2008, were entered as exhibits. In cross-examination, he agreed that the statements were “biased” in that they were written from the perspective of a woman being harassed by a man and not a man being harassed by a woman. Mr. Bakouchev testified that his approach was based upon the assumption that women are harassed by men and he did not believe that a woman, as a newcomer and during her first job, could sexually harass a man. The information that he gathered during his investigation, in conjunction with the applicant’s letters, gave credibility to the applicant’s allegations and Mr. Bakouchev became convinced of the veracity of those allegations.
55In late August 2008 he received an email from Ms. Tomorskaya that the co-worker sent her in early August, which Mr. Bakouchev considered in the course of his investigation. In cross-examination, Mr. Bakouchev testified that the August 4 email was “probably the turning point” at which his opinion towards the co-worker changed. He was influenced by the fact that it was an email written by a female and sent to another female, between personal rather than work email addresses, and which appeared to contain frank statements about the co-worker’s personal life described in her own words.
56By the end of September or early October 2008, Mr. Bakouchev concluded that the applicant’s allegations were correct. He testified “By the end of September or early October, I established for myself that [the co-worker] was not the person that I thought she was and she was a predator and a hunter…. and [the applicant] was a victim. In cross examination he stated, “If I had intervened then none of this would have happened”.
57In the Response, the respondent wrote:
The company admits that it did not make timely and effective steps to deal with Mr. Frolov’s complaints. We value Mr. Frolov as an employee, however, we consider that the $100,000 remedy is too excessive and given the fact that the major disagreement between Mr. Frolov and [co-worker] occurred in Victoria, BC, while they were both away from the office and had nothing to do with the company operations in Toronto, we are agree [sic] to pay Mr. Frolov a remedy in the amount of $5,000 only.
58In its written final submissions, the respondent submits that it has an anti-harassment policy in place “which met all requirements set forth in the Canadian Human Rights Commissions’ Model Policy for Small Organization” and that employees were required to read and sign it. While the Tribunal did not hear evidence on the points set out below, the respondent submitted that it received the first complaint from the applicant on June 4, 2008 and:
The company checked the HRTO decisions to take guidance from them and discovered that never in the history of the Human Rights Tribunal of Ontario there was a case when a female was a harasser. Since no appropriate case laws were found, the company disregarded [the applicant’s] complaints of June 4 and 27, 2008….
59The respondent says that it took 18 working days to commence an investigation and when it commenced an investigation, the co-worker refused to answer questions about her absences. It would be inappropriate and unfair to shift full responsibility for the co-worker’s conduct on the company. The respondent submits:
The analysis of HRTO decisions shows that it takes an experienced and qualified adjudicator at least one year to consider a case and issue a decision, even though the HRTO has all powers and resources to conduct investigation, including the power to subpoena witnesses, hire experts etc.
In Laskowsaka v. Marineland of Canada Inc., 2005 HRTO 30 it took the Tribunal SIX (!) years to resolve a similar sexual harassment case. The applicant was represented by a highly trained and highly paid professional from the Ontario Human Rights Commission. In our case, we had only 18 days and no power whatsoever to force [the co-worker] to cooperate with the investigation.
Since the Tribunal itself cannot do the same work in 18 days, it is unreasonable to expect a real estate investment company to resolve a sexual harassment case in 18 days in the absence of any cooperation of the harasser.
Aleksandra Tomorskaya’s evidence
60Ms. Tomorskaya is a lawyer, trained in Russia, but not licensed to practice in Ontario, and prepared legal paperwork for the respondent’s land rights and dealings in Russia. A 5 page written statement, signed December 12, 2008, written in Russian and translated into English, was entered as an exhibit. In addition to her written statement, she provided viva voce evidence.
61Ms. Tomorskaya testified that she knew that the co-worker was going to Victoria to assist with the sale of the applicant’s home. She observed the co-worker printing off material about the sale of the applicant’s house and was told that it was an advertisement about the sale of the house. Before she left for Victoria, the co-worker told Ms. Tomorskaya that she was going to Victoria to assist with the sale of the house and it was a business trip and that she would be reimbursed for the cost of the plane ticket. Ms. Tomorskaya did not know who reimbursed the co-worker for the cost of the plane ticket.
62When the co-worker returned from Victoria, she told Ms. Tomorskaya that the applicant was interested in establishing a romantic relationship with her. Ms. Tomorskaya did not report this comment to Mr. Bakouchev because it was not her place to do so. Ms. Tomorskaya went to Russia at the end of July and where she stayed for several months.
63While Mr. Bakouchev was conducting an internal investigation into the sexual harassment allegations between the applicant and the co-worker, he contacted Ms. Tomorskaya while she was in Russia. He instructed her to cease all contact with the co-worker, to keep all information confidential and to report to him if the co-worker contacted her. While Ms. Tomorskaya was in Russia, she received an email from the co-worker dated August 4, 2008 which she forwarded to Mr. Bakouchev. She did not reply to the email.
64She did not witness any harassment in the workplace.
The Children’s Evidence
65The applicant submitted recorded statements from his children describing, from their perspective and approximately a year later, what took place while the applicant and the co-worker were in British Columbia.
66Ultimately, because of my findings set out below, these statements were of little probative value to the Tribunal.
THE CODE
67The applicable provisions of the Code are:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
7(3) Every person has a right to be free from,
(a) sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome, or
(b) a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement t the person.
9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
46.3(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1) any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing or omitted to be done by the corporation, trade union, trade or occupational association. [emphasis added]
68Section 46.3(1) of the Code, deems employers liable for the actions of their employees. However, it does not apply to sections in the Code which specifically deal with harassment, including subsections 5(2) and section 7. See Brady v. Durham Rapid Taxi, 2010 HRTO 788.
Credibility Issues
69Where my resolution of the factual differences relates to a credibility assessment, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.
Co-worker was the applicant’s subordinate
70While I appreciate that the workplace was small with only 4 people working in it and that the co-worker was the most junior employee and worked for everyone, I do not accept the testimony of the applicant and Mr. Bakouchev that the co-worker was not the applicant’s subordinate. On his Application, the applicant clearly stated, in several locations, that the co-worker was his subordinate. He was asked by Mr. Bakouchev to conduct a performance assessment of the co-worker in or around June 2008. The co-worker’s letter of employment, which was entered as an exhibit, identifies the applicant as being the co-worker’s supervisor.
Trip to British Columbia
71I do not accept, based upon the evidence that was before me in this Application, that the applicant was surprised when the co-worker arrived in British Columbia in May 2008 while the applicant was vacationing there. Instead, I find that it was a personal trip about which the applicant was aware, and that he assisted in the planning of the trip and paid for the airplane ticket, without the knowledge of the respondent. As such the respondent is not liable to the applicant for the co-worker’s alleged conduct in British Columbia.
72The evidence establishes that the applicant requested Mr. Bakouchev’s approval to take vacation in May 2008 for the purposes of visiting his children and selling a house that he owned in Victoria. The others in the office knew that he was leaving for Victoria and that he was planning on selling a house.
73On May 2, 2008, shortly after midnight, an email itinerary/receipt confirmation was sent to the co-worker showing that a plane ticket for May 7, 2008 from Toronto to Victoria, via a connecting flight to Vancouver (and return), had been purchased in the amount of $644. This document was entered as an exhibit. On May 2, the applicant transferred $644 from his bank account to the co-worker’s bank account. I do not accept the applicant’s evidence that he thought the money would be used by the co-worker to purchase a ticket to Florida to visit her mother. On May 1 the co-worker’s telephone records, which were entered as exhibits, show that several telephone calls were made between the applicant’s and the co-worker’s cell phone numbers, after working hours, with the first call initiated by the applicant. The applicant denied that the conversations were about flights to Victoria, but provided no explanation about why he was having a telephone conversation with the co-worker after her working hours while he was already in Victoria.
74On May 7, the day the applicant said the co-worker “unexpectedly” arrived in British Columbia, the telephone records show that the applicant initiated a telephone call to the co-worker’s cell phone after her plane was scheduled to land in Vancouver and before it was scheduled to depart to Victoria. The telephone records also show that there were several more telephone conversations between the applicant and the co-worker after the co-worker’s plane was scheduled to land in Victoria. Both the telephone records and the plane ticket were introduced as exhibits at the hearing.
75Ms. Tomorskaya testified that she knew the co-worker was travelling to British Columbia, after the applicant left on his vacation, and would be reimbursed for the cost of the airplane ticket by either the respondent or the applicant. Ms. Tomorskaya saw the housing advertisement that the co-worker had worked on with the applicant and had printed off her computer.
76Mr. Bakouchev did not know the co-worker was taking a vacation anywhere or was travelling to British Columbia. When the co-worker did not report for work, he tried calling her on her cell phone, but did not receive a response. When he finally touched base with her, the co-worker told Mr. Bakouchev that she was with the applicant, refused to answer any questions, and referred Mr. Bakouchev to the applicant. The applicant did not provide any information to Mr. Bakouchev, and chastised Mr. Bakouchev for calling him on his vacation. Both the co-worker and the applicant told Mr. Bakouchev that it was “none of his business” when he tried to inquire about the situation. The respondent later deducted from the co-worker’s wages the time that she spent in British Columbia because it was not work related time she spent there. All these factors cause me to find that the events in British Columbia were not part of the applicant’s employment.
The Respondent’s Failure to Reasonably Investigate
77It is well established in the Tribunal’s jurisprudence that an employer may be held liable for the way in which it responds to a complaint of discrimination. This is a different role from the Tribunal’s role. Under section IV of the Code, the Tribunal has an adjudicative role based upon the filing of an Application.
78The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. As stated in Laskowska v. Marineland of Canada Ltd., 2005 HRTO 30 (“Laskowska”), at para. 53:
It would make the protection under subsection 5(1) to be a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a ‘means’ by which the employer ensures that it is achieving the Code-mandated ‘ends’ of operating in a discrimination-free environment and providing its employees with a safe work environment.
79The Tribunal’s jurisprudence has established that the employer’s duty to investigate is held to a standard of reasonableness, not correctness or perfection. In Laskowska, the Tribunal set out the relevant criteria for an employer to consider in its duty to investigate as:
(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 him/her with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?
80The Tribunal in Laskowska 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.
81An employer can attract liability for its failure to investigate notwithstanding that a violation of the Code has not been made out. See Nelson v. Lakehead University, 2008 HRTO 41. In this case, allegations of sexual harassment have been made, but, for the reasons set out above, have not been determined by the Tribunal.
82In this case, the alleged victim was a man claiming that a woman was sexually harassing or soliciting him. Mr. Bakouchev failed to act upon the applicant’s initial allegations and his first written complaint. While the respondent may not have been aware that men can experience sexual harassment or is unaware of the different types of sexual harassment that can exist, this does not eliminate the respondent’s obligation to investigate into the applicant’s allegations. The Tribunal has held that a respondent’s ignorance about its Code obligations does not excuse the respondent or act as a defence to its Code obligations. See Torrejon v. 114735 Ontario, 2010 HRTO 934.
83The courts have recognized for some time that men and women can be both perpetrators and victims of sexual harassment. In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (S.C.C.), the Supreme Court of Canada noted at p. 34 of its decision that “Perpetrators of sexual harassment and victims of the conduct may be either male or female”. Sexual harassment has often been viewed as a gendered harm towards women because many cases of sexual harassment were most often perpetrated by a man in a position of authority over a woman. However, men can also be subjected to sexual harassment. See, for example, the Tribunal decision of Smith v. Menzies Chrysler, 2009 HRTO 1936 in which a man was found to have sexually harassed another man.
84Once the applicant brought issues of sexual harassment/solicitation to the attention of the respondent, the respondent had an obligation under the Code to respond reasonably and adequately to the applicant’s complaints. It failed to do so and thus became liable under the Code for its inadequate response.
85Further, I find that Mr. Bakouchev’s inaction and his dismissive comments to the applicant, such as “stop complaining”, “be a reasonable man” and “you should be pleased that she pays attention to you” violate section 5(1) of the Code and constitute discrimination on the basis of gender (sex) as further detailed below.
Failure to follow own anti-harassment policy
86The respondent’s policy contained a suggested procedure for the respondent to follow in investigating and resolving harassment complaints. The policy stated:
- Procedure for Resolving Complaints
This policy suggests the following procedure for resolving complaints:
A plaintiff may make a written complaint to the Director o[f] Mosregion Investments Corp., that an incident of harassment has taken place no later than 3 weeks after the occurrence.
In 10 days the letter with request to explain the situation and confirm or challenge the factual information is forwarded by the Director to the respondent (the person about whom the complaint is made).
The respondent then responds in writing to the plaintiff’s letter through the Director within 24 hours. If a legal advice is required the Director gives not more than 3 days to seek such advice.
If the respondent refuses to provide a written explanation at the request of the Director, in order to stop harassment immediately the Director takes actions to ensure that the plaintiff and the respondent work in separate offices until the matter has been resolved.
The Director appoints a Mediator and, if required, an ad hoc committee to meet with the plaintiff and the respondent to mediate a resolution. A meeting will be arranged between the Director, the plaintiff and the respondent to come to some resolution of the complaint.
If mediation does not resolve the complaint, the Director will appoint an arbitrator from outside the company who will make a binding decision. If no resolution is reached, then the arbitrator will report to the Director or actions will be taken. These may include: censure, fines, request for written apology, transfer to another office, bonus reduction and/or cancellation and termination of employment for good cause.
This procedure for resolving complaints is not meant to be rigid but provides a suggested mode for proceeding. If the parties can agree to meet collectively without the prior individual meetings this may be warranted in some cases. If feelings are running high, it is recommended that interim individual meetings take place.
87The respondent failed to follow its own policy, despite the applicant referring to it in his letters of complaint. Mr. Bakouchev failed to provide the co-worker with copies of the applicant’s letters, as required by the policy, and failed to appoint a mediator or an arbitrator. Although he rented new office space at the end of June and suggested to the co-worker that she move offices, when she refused to do, Mr. Bakouchev did not take steps to ensure that the applicant and the co-worker worked in separate offices as required by the policy.
Failure to take the applicant’s concerns seriously
88Mr. Bakouchev failed to take the applicant’s concerns seriously. The first time the applicant approached him, Mr. Bakouchev thought his concerns were “a joke” and dismissed them because he did not realize that a woman could harass a man and thought that sexual harassment only occurred with an older man and a younger woman. He did not want to “inconvenience” the co-worker, whom he liked as a person, by raising the allegations with her, and certainly not on her birthday. He told the applicant that he “should be pleased the co-worker paid attention to him.
89When he received the second letter, Mr. Bakouchev did not know what to do because he had never dealt with this type of situation before. There was no evidence that he sought professional guidance. He did not invoke the anti-harassment policy despite being referred to it again in the applicant’s June 27 letter of complaint. He directed the applicant to conduct a performance assessment of the applicant and told him to “stop complaining” and “to be a reasonable man”. While he submitted in his final submissions that he reviewed Tribunal jurisprudence for guidance on how to address these allegations, this evidence was not presented at the hearing
90Mr. Bakouchev’s responses demonstrate a complete lack of understanding of the seriousness of sexual harassment complaints and the legal obligations placed on the employer that receives such a complaint to proceed promptly with an investigation before drawing any conclusions about the validity of the complaint. See Harriott v. National Money Mart, 2010 HRTO 353 at para. 121. As set out above, his dismissiveness of the possibility the applicant could be harassed by a woman also establishes a basis for finding that the applicant’s right to a workplace free from discrimination on the basis of gender (sex) were violated.
Failure to commence investigation in a timely manner
91The respondent submits that the investigation commenced 18 working days after receiving the first written complaint and it was precluded from starting earlier, in part, because the co-worker was on an unauthorized vacation. In other circumstances, an 18 working day delay in commencing an investigation may be reasonable. However, in the circumstances of this case, there was an unreasonable delay in the respondent commencing an investigation.
92The office was extremely small with 4 individuals working in it. The allegations about the co-worker were serious and were about the applicant’s subordinate. The complaints were detailed and the applicant was specific in his request that an investigation be conducted. The co-worker was at work for a short period after the respondent received the June 4 complaint. It was not until the third complaint was received that the respondent commenced an investigation. Taken together, I find that the respondent, in these circumstances, failed to commence an investigation in a timely manner.
Investigation initially suggested that the co-worker had been the victim of sexual harassment rather than the perpetrator as alleged in the applicant’s letters of complaint
93Not only did Mr. Bakouchev fail to take the applicant’s complaints seriously, when he did decide to communicate with the co-worker, he failed to raise the applicant’s allegations. When he sent his June 16 email to the co-worker, Mr. Bakouchev addressed vacation issues rather than stating that he had received a complaint of sexual harassment against her.
94More disturbing is Mr. Bakouchev’s response after receiving the applicant’s July 7 letter of complaint. He testified that he tried to find out the co-worker’s side of the story after receiving the third complaint, but, rather than advising the co-worker of the applicant’s allegations, he sent her an email on July 9 which suggested that she had been the victim of sexual harassment rather then the perpetrator as had been alleged. Mr. Bakouchev wrote:
It has been brought to my attention that you have been making some conflicting statements on alleged workplace harassment and/or abuse on the part of some employees of our company….
If there have been actions on the part of an employee of this company including myself that you have interpreted as harassment and/or abuse I request that you report it in writing….. [emphasis added]
95To further illustrate this point, attached to Mr. Bakouchev’s July 9 email was a “Notarized statement” which he requested the co-worker to sign and have notorized. It stated:
I am fully aware of the definitions and signs of workplace harassment. I hereby state that I have not experienced any form … of discrimination, ….. as well as any kind of harassment, including ….. sexual harassment from employees and managers and owners of [the respondent]. [emphasis added]
96When Mr. Bakouchev contacted the respondent’s former employees, he asked all of them three general and open ended questions pertaining to workplace harassment at the respondent’s workplace. The questions posed did not address or refer to any of the allegations made by the applicant about the co-worker.
97To at least one former employee, Irina Mornot, his focus still seemed to be that the co-worker was the subject of sexual harassment, rather than the perpetrator as alleged by the applicant. Mr. Bakouchev asked:
Question 4: Have you ever been approached by [co-worker] with questions or discuss any scenarios in which a young woman used sexual harassment accusations in order to receive substantial monetary settlements from her company? If so, when and where did it happen? Please provide details.
98Not only were Mr. Bakouchev’s actions at odds with the allegations raised by the applicant, which are before this Tribunal, they suggested that Mr. Bakouchev was not neutral in his investigation towards the applicant’s allegations. The perception of neutrality and lack of bias to both a complainant and an alleged harasser are key components in an investigation. See Murchie v. JB’s Mongolian Grill, 2006 HRTO 33, at para 166, citing from How to Conduct a Workplace Human Rights Investigation, MacKillop, M, Knight, J, and Taylor, P, Thomson Canada Limited, Toronto: 2004.
99Mr. Bakouchev testified that “by the end of September or early October 2008”, he concluded that the applicant’s allegations were correct. I did not hear evidence that the respondent specifically communicated these conclusions to the applicant, but observed, during the course of the hearing and in the parties’ written submissions, that the respondent did not dispute that the applicant was subjected to sexual harassment or sexual solicitation by the co-worker.
100As a result of all of these factors, I find that the investigation was seriously flawed. The manner in which it was conducted itself constituted a breach of the Code under section 5(1). This could have been avoided, or minimized, if the investigation had been carried out sooner, following the respondent’s policy and from a neutral perspective. I note Mr. Bakouchev’s acknowledgement that he should have done something sooner, and the respondent’s Response in which it admits that it did not take timely and effective steps to deal with the applicant’s complaints.
101However, I also note that the respondent, in its final submissions, does not appear to take full responsibility for its failure to adequately investigate. The respondent incorrectly compared the hearing process that resulted in a 2005 Tribunal decision (Laskowska, supra) with the employer’s obligation to conduct an investigation. An employer’s obligation to investigate when presented with allegations of harassment and/or discrimination exists regardless of whether an employee files an application with the Tribunal and regardless of whether the Tribunal has issued decisions addressing the same legal issue.
Remedies
102Having found that the respondent breached the Code, I turn now to question of the appropriate remedies in the circumstances. The Tribunal’s remedial jurisdiction is based on section 45.2 of the Code which reads as follows:
On an application under section 34, the Tribunal may make one of more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
103The applicant seeks $95,000 in damages as compensation for injury to dignity, feelings and self-respect.
104A human rights damages award for injury to dignity, feelings and self-respect includes a recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) recently confirmed that an award to compensate for the “experience of victimization” is predicated upon a number of considerations, including: the impact of the infringement, the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome. See Smith, supra, at para. 172. In addition to the subjective effects of discrimination of an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; appeal dismissed 2010 ONSC 278.
105As I have set out earlier in this Decision, I cannot make any findings about whether the applicant was sexually harassed or sexually solicited by the co-worker and thus am not awarding any remedies with respect to that issue. I have determined that the respondent discriminated against the applicant on the basis of gender (sex) and failed to reasonably investigate into the applicant’s written complaints about the co-worker’s conduct and thus has violated the Code.
106The applicant testified about his experience of victimization. He testified that he felt that there was nothing he could do to have his concerns addressed and nowhere for him to turn except to file his Application. The failure of the respondent to investigate into his concerns affected his family relationships, his work, and his work relationships. This was compounded when the respondent commenced an investigation, not from the perspective of a man alleging harassment by a woman, but a woman alleging harassment by a man.
107Some of the Tribunal’s more recent decisions, in which there were findings of sexual harassment and/or sexual solicitation as well as job loss, as well as a failure to investigate, have awarded monetary compensation over $20,000, in addition to other monetary remedies, for violation of the applicant’s inherent right to be free from discrimination and harassment. See, for example, Smith, supra, at para. 187 and Harriott, supra, at para. 156.
108In the circumstances of this case, and in light of the fact that I am making no findings that sexual harassment and/or solicitation occurred, I find it appropriate to award $7,500 for the violation of the applicant’s inherent right to be free from discrimination and harassment and for the respondent’s failure to reasonably investigate. In awarding this amount, I have considered the fact that the applicant did not lose his job and was not in a vulnerable position in that the allegations were about his subordinate. I have also considered that the applicant raised serious issues about the co-worker in writing on three occasions before the respondent started an investigation, which, for the reasons described above, was flawed.
109The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”: see Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 91.
110In the circumstances of this case and in order to promote future human rights compliance, it is important for Mr. Bakouchev to have a better understanding of rights and responsibilities provided by the Code. While this was not a remedy that was sought by the applicant, and not one on which the parties made submissions, I find it appropriate to require Mr. Bakouchev to have the respondent’s anti-harassment policy reviewed by a human rights consultant and to take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca.
ORDER
111In conclusion, the Tribunal orders that:
a) within 30 days of the date of this Decision, the respondent shall pay the applicant $7,500 for violation of his inherent right to be free from discrimination; and,
b) within 30 days of this Decision, the respondent is required to retain, at its own expense, a human rights consultant to review its anti-harassment policy and make recommendation where it conflicts with the Code; and
c) Mr. Bakouchev is directed to take the eLearning module “Human Rights 101” on the Ontario Human Rights Commission’s website.
Dated at Toronto, this 1st day of September, 2010.
“Signed by”
Alison Renton
Vice-chair