HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ouliana Baisa

Applicant

-and-

Skills for Change and Nelson Briceno

Respondents

DECISION ON REMEDY

Adjudicator: Mark Hart

Date: October 27, 2010

Citation: 2010 HRTO 2161

Indexed as: Baisa v. Skills for Change

WRITTEN SUBMISSIONS BY

Ouliana Baisa, Applicant ) Self-represented

Skills for Change and Nelson Briceno, ) Soma Ray-Ellis, Counsel Respondents )

Decision

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), dated May 25, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on June 22, 2007.

2By Decision dated July 29, 2010, 2010 HRTO 1621, I found that two comments made by Mr. Briceno towards the applicant amounted to harassment in employment because of sex, martial status and family status in violation of s. 5(2) of the Code, and created a poisoned work environment in violation of s. 5(1) of the Code. All of the other allegations raised by the applicant were dismissed.

3In my Decision, I invited submissions from the parties on the issue of what remedy should flow from the specific violation of the Code I have found. Written submissions were filed by all parties.

4The applicant requests compensation for injury to dignity, feelings and self-respect in the amount of $40,000. Awards for such compensation in that amount are, while not unprecedented, certainly at the higher end of the scale, and are generally awarded where the Code violation has had a severe impact on the applicant as supported by medical evidence. In the instant case, while I appreciate that the applicant may subjectively feel that the impact on her was severe, the Code violation that I found was based upon two comments made by a co-worker in a relatively short space of time and the applicant did not tender any medical evidence to support the impact of these comments on her.

5The respondents rely on a number of recent decisions of this Tribunal dealing with inappropriate comments, to suggest an appropriate range for compensation as between $100, as in Kovacs v. Inscan Contractors, 2010 HRTO 810, and $1,000, as in Romano v. 1577118 Ontario Inc., 2008 HRTO 9.

6In my view, the comments made by Mr. Briceno are more in line with the kind of comment that was made in Romano, supra. Both the comment in Romano and the "motherfucker" comment which I found was made by Mr. Briceno are sexually vulgar references that are obviously demeaning. I also find that the comment made by Mr. Briceno both to the applicant and a male co-worker about the applicant wanting this male co-worker to provide artificial insemination for her was humiliating to the applicant. In my view, the circumstances of this case warrant a slightly higher award of compensation than in the Romano case. Accordingly, I award the applicant the sum of $1,500.00 as compensation for injury to dignity, feelings and self-respect.

7The applicant also has requested an apology from the corporate respondent, which she says will assist in her getting closure in this matter. The respondent opposes this request on the basis that there was no finding made that the corporate respondent had failed to adequately or appropriately respond to the applicant's internal complaint or had engaged in the other acts of discrimination alleged.

8The applicant has not asked for an apology from Mr. Briceno, and in any event, given that he denied making the comments in his evidence, I do not see that ordering Mr. Briceno to provide an apology would serve any useful remedial purpose. With regard to the corporate respondent, the only basis upon which I have found it liable is due to its deemed liability for the actions of Mr. Briceno in creating a poisoned work environment for the applicant as a result of his comments. In my view, I don't see any greater purpose served in having the corporate respondent apologize for Mr. Briceno's comments and the creation of a poisoned work environment than I do in Mr. Briceno apologizing himself.

9I appreciate that the applicant would like an apology in order to get closure in this matter. However, I hope that she will be able to accept the decision of this Tribunal that the comments were made and caused harm to her as sufficient to satisfy her desire for closure.

10Finally, while the applicant did not specifically request any broader public interest remedy in her submissions, I do have discretion under the Code to consider on my own initiative whether such a remedy is warranted. The corporate respondent's Code of Conduct and Anti-Discrimination Policy were in evidence before me, and I found in my Decision that the corporate respondent took appropriate steps in response to the applicant's internal complaint. Accordingly, I do not see the need for further policy development or training in this area. In addition, I note that as a consequence of the applicant's internal complaint, Mr. Briceno was required to attend sensitivity training, and this training appears to have had a positive effect on his conduct in the workplace. Accordingly, I decline to exercise my discretion to award any further public interest remedy.

ORDER

11I hereby make the following order:

a) The respondents are jointly and severally liable to pay to the applicant the sum of $1,500.00 as compensation for injury to her dignity, feelings and self-respect;

b) Post-judgment interest on this amount shall accrue at the rate of 2.0% per annum on any amount unpaid 30 days from the date of this Decision.