Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne-Marie Sutton

Applicant

-and-

Jarvis Ryan Associates Inc., Peter Jarvis and Michael McColl

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: December 7, 2010

Citation: 2010 HRTO 2421

Indexed as: Sutton v. Jarvis Ryan Associates

APPEARANCES:

Anne-Marie Sutton, Applicant ) Jo-Ann Seamon and Adriana ) Greenblatt, Counsel )

Jarvis Ryan Associates Inc., Respondent ) Robin Post, Representative

Peter Jarvis, Respondent ) Self-represented )

Michael McColl, Respondent ) Self-represented )

INTRODUCTION

1This is an Application filed on December 30, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination and harassment in employment or, alternatively in contracts on the basis of sex, and that she was subjected to sexual solicitation or advances.

2The respondents are an accounting firm, Jarvis Ryan Associates Inc. (“JRA”), Peter Jarvis, a principal in that firm and Michael McColl, a client of the firm, who had been hired as a contractor during a firm retreat to provide food services. They deny the allegations.

3In a previous Interim Decision, 2009 HRTO 1072, the Tribunal considered and denied a Request for Order filed by the respondents in which they sought to have the Application dismissed. The respondents argued that the Tribunal lacked jurisdiction because the applicant was not in an employment relationship with JRA and further, if the Tribunal found it had jurisdiction, the substance of the matters before the Tribunal had been appropriately dealt with in two previous police investigations that had been closed.

4The Tribunal denied the respondents’ request, holding that the issue of jurisdiction was more appropriately dealt with at a hearing with a full evidentiary record concerning the nature of the relationship between the parties and that s. 45.1 did not apply to the circumstances of this Application as the closed criminal investigations had not addressed the human rights issues before the Tribunal, appropriately or otherwise.

5A hearing, spanning eight days, took place during which I heard from a number of witnesses. The applicant, her husband and the applicant’s former family physician, Dr. Ginty, gave evidence on her behalf.

6Both the applicant and the respondents called Dipta Baidya, a former intern at the firm, who was present and in the company of the applicant and the two personal respondents at the material time.

7On behalf of the respondents, I heard from the personal respondents Peter Jarvis and Mike McColl, as well as Robin Post and Ray Ryan, partners in JRA, Cathy Sowrey and Julie Branning, former colleagues of the applicant and employees of the respondent JRA and Lana Lingenfelter, a person who attended the JRA retreat to provide bartending services.

8There are a number of issues in dispute between the parties. There is no agreement as to whether the applicant was in an employment relationship within the firm or whether she was an independent contractor. There is, of course, disagreement as to whether the events complained of by the applicant took place in the way she describes and whether they constitute discrimination or harassment as defined in the Code, whether the corporate respondent had a duty to investigate the complaint raised by the applicant and, if so, whether they met that duty and, finally, on the question of appropriate remedy if a violation of the Code is established.

9For the reasons that follow, this Application is granted in part.

THE LAW

10Sections 3, 5, 7, 9 and 10(1) of the Code read as follows:

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

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(1) Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.

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) 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 a 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 to the person.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;

THE EVIDENCE

11Although there was a great deal of evidence provided concerning background events, much of it was not relevant for the purposes of determining whether there was a contravention of the Code. I have laid out the evidence provided by the parties on relevant issues and where there was disagreement or divergence, I have noted it.

12The respondent JRA is an accounting firm, described by its principals as a “not-for-profit administration vehicle”. The respondent Jarvis is one of the principals in the firm and the managing partner. The respondent McColl is a chef and occasional client of JRA. His involvement in the Application arises out of being hired by JRA to act as a chef during a firm retreat in North Carolina.

13The applicant, Anne-Marie Sutton, characterizes herself as having been in an employment relationship within JRA.

14She acknowledges that she was an employee of her own corporation, 2018152 Ontario Inc., operating as Phatcat Services (“Phatcat”) and that Phatcat billed JRA for her time. While she concedes that Phatcat provided bookkeeping services to non-JRA clients, she states that, with respect to the work done at JRA, she was more like an employee.

15She gave evidence that clients of the firm viewed her as a member of staff, she had an office, phone and email address at the firm and was listed on the website under “staff profiles”. She says that she was dependant on the firm for review and approval of any accounting work done at JRA because she is not a chartered accountant. She also gave evidence that JRA controlled the rate at which her services were charged out, that she performed work given to her by the senior members of the firm and that although she had a profit sharing arrangement with respect to some clients that she had introduced to the firm, she was not considered a partner in the same way as the senior members of JRA.

16JRA in turn says that if the applicant is an employee, it is of her own firm, Phatcat. JRA takes the position that there was no employment relationship between it and the applicant. They point out that unlike people employed by JRA who received their pay after income tax and other statutory withholdings had been paid out by the firm, Phatcat billed JRA. She was not required to maintain or work set office hours and that targets were not set for her as they were for employees. They point out that unlike the employees of the firm, the applicant had a profit sharing arrangement with respect to clients that she had brought in to the firm.

17Much of the general evidence surrounding the firm retreat was not in dispute. The applicant was one of a number of partners, employees, family members and clients of JRA who journeyed to North Carolina for a number of days in May 2008. The premises rented for the week long trip contained private bedrooms as well as common areas containing a kitchen, eating area, games room and outside space that included a hot tub. The vacation rental was by the ocean and there was a boardwalk that led to the beach and the water.

18The applicant gave evidence that she brought her two children along with her for the trip. Her husband, Chris Emery, did not accompany them. She and her children drove in their own car as part of a convoy of cars both there and back. She did not pay any money towards the rental of the accommodations or for any expenses such as food or alcohol during their stay at the house in North Carolina.

19Dipta Baidya, an intern working at JRA at the time, brought her mother along on the trip. She also paid for their own transportation to and from the location but not for accommodation or food.

20Peter Jarvis, Robin Post and Ray Ryan gave evidence that they brought along various family members and clients, along with their personal partners. They paid the expenses for their guests. They deny that the firm supplied all of the alcohol consumed during the trip and say, instead, that people contributed funds to pay for what they wanted.

21Lana Lingenfelter and Michael McColl had a somewhat different arrangement in that they provided some services during the trip; she preparing drinks and he providing food preparation services.

22The respondents gave evidence that some people contributed money for the accommodations and food and that most people contributed towards the communal purchase of alcohol and that the alcohol was not supplied by the firm or any particular member of the firm.

23The applicant took the position that alcohol flowed freely during the retreat and she believed that Ms. Lingenfelter, the person making the drinks, had been instructed to keep people’s glasses full. She said that she had to speak to Ms. Lingenfelter on one occasion as she was making her drinks too strong.

24Ms. Lingenfelter’s evidence was that she has a Smart Serve certification and is an experienced bartender. She stated that she was not instructed to make drinks any stronger than usual.

25Although the facility in North Carolina had been rented from May 11, 2008 to May 18, 2008, the participants arrived and departed independently and at different times. The applicant and her children arrived on May 11 and left on the 18th.

26The events that precipitated the filing of this Application took place on the night of May 14, 2008, and in the months following that date. I have laid out the evidence of the parties concerning those events below.

The applicant’s account

27In the late evening of May 14, 2008, after her children went to bed around 10:00 p.m. or 11:00 p.m., the applicant left her children in their room and returned to the common area and had a few drinks. She reports that the respondent McColl’s general demeanour that day had been flirtatious and he gave the impression that he was interested in her. She indicated that she “did not reject [this interest] and accepted his affections”.

28Under cross-examination, she also acknowledged that on a previous evening, both of them had been part of a general discussion involving sexual topics, including oral sex. It appears that Ms. Baidya had been present during that discussion also.

29She had been drinking prior to putting her children to bed that night and states that she had some more to drink afterwards. When Peter Jarvis suggested that they all go to the hot tub, she went upstairs to the room she shared with the children, changed into her bathing suit and then joined Ms. Baidya and the two personal respondents in the hot tub.

30Once in the hot tub, she says that she began “making out” with Michael McColl. She described the contact as “not unwelcome”. She says that, although she had no awareness of it at the time, she now remembers respondent Jarvis taking her legs and spreading them. She remembers lifting her head, looking at him, seeing him watching her and waiting for a reaction. She says she now she remembers respondent McColl rubbing her perineal area with his hand and that he inserted his finger into her. She does not mention whether she remembers where Ms. Baidya was, what she was doing at this time and whether she said or did anything. She does not remember if she said or did anything at the time.

31She says she remembers the respondent Jarvis and Ms. Baidya getting out of the hot tub and then she recalls kissing the respondent McColl, continuing to “make out” with him and taking the top of her bathing suit off. She remembers sitting on his lap and facing him, feeling he was getting aroused and then both of them agreeing that they should stop.

32She remembers then getting out of the hot tub, speaking to Ms. Baidya, who was on a cell phone in the common kitchen area, saying “don’t worry, nothing happened” before heading to bed.

33When questioned further, the applicant indicated that some of these memories were triggered more than one month later, particularly the incident involving the respondents Jarvis and McColl and described as unwelcome, and that she had no recollection of some of these things happening at the time, as she would not have consented to “being fingered in public” or to doing anything with respondent Jarvis in public with someone watching.

34She testified that on the morning of the May 15, 2008, she got up to say goodbye to the respondent McColl as he was leaving early in the morning and that later in the morning, she felt groggy but not hung over. She did not have any discussions with the respondent McColl about the previous night; she says they simply said goodbye to each other.

35She says that she did not discuss the events of that evening with Ms. Baidya, Peter Jarvis or anyone else during the four additional days she spent in North Carolina.

36Under cross-examination, the applicant did give evidence of having been in the hot tub on one of the evenings after the 15th of May and before she left on the 18th. She indicated that she, a female client of JRA and Peter Jarvis had been nude during their time in the hot tub. This event had not been mentioned in the Application and there was no allegation before the Tribunal that this event gave rise to conduct that was unwelcome.

37Upon her return to the office on May 20, 2008, the applicant testified that she told Cathy Sowrey, a co-worker and friend, that she had “made out” with the respondent McColl and that she “did not know how or why it had happened but she accepted it”.

38The applicant recalls seeing the respondent McColl in the office on May 23, 2008, during the workday, subsequently sending him an email and phoning him to ask him to send her pictures from the trip. She recalls feeling awkward during that conversation.

39During the weekend of June 14, 2008, she told to her husband that she had made out with someone and then put a stop to it while in North Carolina. The following Monday she called Cathy Sowrey at JRA and told her that she would not be coming in to work all week and that her world was crumbling.

40The applicant says that she stayed at home with her husband that week and they discussed and reviewed what had happened during the retreat. She claims that it was then that she realized that she was missing pockets of time and she began to try and fill in the gaps in her memory.

41She realized she could not return to work and resigned effective June 23, 2008. She says that she knew that the respondent Jarvis was involved in whatever had happened to her and by this time she had suspicions that she may have been drugged at some point that evening.

42The applicant acknowledges that Ray Ryan, a partner at JRA whom she considered something of a mentor, came to her home along with the applicant’s mother to ask if she was alright on June 18, 2008. She also acknowledges that she and her husband told them to leave their property.

43Both the applicant and her husband testified that he went to the respondent McColl’s home, vandalized some rose bushes, left phone messages for him and for his wife. They testified that the applicant’s husband also told a neighbour that respondent McColl had an “affair” with his wife. When questioned about the use of the word “affair”, the applicant’s husband said that he used the word because he was speaking to a senior and he did not want to use rude language.

44In late July, 2008, the applicant met with Ms. Baidya to find out what she could tell her about what had happened on the night of May 14th in order that she could fill in the gaps in her memory. After that conversation, she says that she realized that Dipta had been present while “something sexual” had happened between her and the two personal respondents. She felt devastated and she testified that by now she and her husband believed that she had been drugged and assaulted and that the respondent Jarvis had been involved.

45Following that meeting, both she and her husband acknowledge that he phoned Ms. Baidya. They then contacted Mr. Ryan at home to tell him that they believed she had been drugged and assaulted and that his partner, the respondent Jarvis, was involved. She testified that her husband was on the phone with Mr. Ryan and she was sitting beside him. She indicates that they told him that they just wanted him to know and that they did not want him to do anything.

46She also said she contacted Ms. Post, a partner in the firm, who was also in a personal relationship with the respondent Jarvis. She asked Ms. Post to meet with her to discuss the matter without telling the respondent Jarvis because she did not want to meet him. She says Ms. Post agreed to meet but not in private. She then left a message with her and told her that she had been assaulted and that the respondent Jarvis had been involved. Ms. Post did not call her back.

47Shortly thereafter, she says she received letters from a law firm telling her to cease contact with the respondent McColl and, around the same time, she received a similar letter from JRA signed by Ray Ryan, Peter Jarvis and Robin Post.

48The applicant contacted police in Ontario and in North Carolina. A report from the North Carolina authorities was entered in evidence. The report indicates that the North Carolina police did not intend to charge anyone in connection with this matter. It appears that the applicant made inquiries of a friend in Ontario and did not formally seek to have the matter investigated by the police in this province.

49The applicant testified about the devastating effect that these events had on her. Both her former physician and her husband also gave evidence about the decline in the applicant’s health, her weight loss, despondency, insomnia and poor concentration in the weeks and months following her departure from JRA. The applicant and her husband testified about the financial difficulties their family faced after she stopped working given that she had been the family’s main source of income.

Dipta Baidya’s account

50Dipta Baidya was an intern at JRA at the time of the retreat in May, 2008. She was employed by JRA from October 2007 until July 2008 and, for reasons unrelated to the events that are the subject matter of this Application, she is no longer employed by JRA, and I find that she has no reason to lie on their behalf.

51She states that late at night on the evening of the May 14, 2008, Peter Jarvis suggested everyone go to the hot tub. She could not say how much the applicant had had to drink at the time as she had not been with her all day or all evening. She says that a suggestion was made that the people present go to the hot tub. She says everyone went to their own rooms to change and then she met the personal respondents and the applicant outside and they all went to the hot tub. She says that the four of them were the only ones there.

52Initially the applicant and the respondent McColl were sitting next to each other. She reports that the applicant and the respondent McColl were kissing for a long period of time and that their hands were on each other. She could not confirm whether the respondent McColl’s hands were on the applicant’s thigh or in the perineal area given it was under the water.

53She says that the bottoms of the feet of the applicant and the respondent Jarvis were touching for a time, perhaps a minute, when they were sitting across from each other but there was no indication that she saw the respondent Jarvis holding the applicant’s feet or legs with his hands or legs. She reports the respondent Jarvis saying, “I want this”, and that at some point, she and the respondent Jarvis left the applicant and the respondent McColl in the hot tub and went to get some wine.

54When they returned, she saw the applicant sitting on the respondent McColl in the hot tub with her legs straddling him. She says the two were facing each other and they were kissing each other. The applicant did not say anything to either her or the respondent Jarvis as she appeared to be occupied with the respondent McColl.

55She recalls that either she or the respondent Jarvis said, “we should leave”, and they then left the applicant and McColl in the hot tub. She saw the applicant a short time later the same night and she appeared fine and that the applicant said that she was alright. She also spoke with the applicant the next day and the applicant told her she had gotten up earlier to say goodbye to the respondent McColl who had left early in the morning.

56Ms. Baidya indicated that she was contacted by the applicant and then Christopher Emery, the applicant’s spouse, in late July or early August 2008. She met in person with the applicant and was contacted by phone by her husband.

57During her meeting with the applicant, Ms. Baidya says that she told the applicant what she remembered about the evening and what she had seen. Ms. Baidya described her as a being “a mess”. She says the applicant was sobbing and asked her why she had not stopped her. She told the applicant that she had not looked drunk, that she looked like she knew what she was doing, that she was a mature adult and she was not her mother or father.

58She was later phoned by the applicant’s husband who told her that he “forgave her for not protecting his wife”. She told him that given the circumstances, she did not need or seek his forgiveness.

Peter Jarvis’ account

59The respondent Jarvis gave evidence that the applicant did not appear to be in distress during the time in the hot tub or an unwilling participant in any interaction. He said he thought she was joking around. At one point she appeared to be moaning and he said something like, “I’ll have what she’s having”, to Ms. Baidya in reference to the diner scene in the movie, When Harry Met Sally. He suggested that perhaps Ms. Baidya may not have understood the reference to the movie given her youth.

60The respondent Jarvis indicated that if there was any physical contact between himself and the applicant, it would have been fleeting and only the bottoms of their feet. He denies holding her legs apart with his legs or his arms, and points out that Ms. Baidya would have noticed if he had done so as she was there the whole time.

61He says he felt a certain responsibility to Ms. Baidya, who was a young intern in her early twenties, and they left to get a drink when it appeared the applicant and the respondent McColl were becoming too intimate. He considered the applicant to be an adult, capable of making her own choices and did not believe it was his place to intervene in her interaction with the respondent McColl.

62He says that in the remaining days in North Carolina, the only time he and the applicant discussed respondent McColl was when she asked him to call Michael. At no time did she raise issues of drugging or assaulting with him between May 15 and 18, 2008.

Michael McColl’s account

63The respondent McColl stated that although he had met the applicant in passing at the JRA office on a couple of occasions before the retreat, he did not know her very well. However, during the retreat, he was able to spend more time with her and he felt that they were both flirting with each other in the days leading up to the time spent in the hot tub. He and the applicant had a discussion on a previous evening about sexual matters, including the topic of fellatio, during which he says she was an active participant.

64He indicated that they had all been drinking before getting to the hot tub but, in his view, everyone was coherent, clear and steady. When the four people initially got in to the hot tub, there was space between all of them. He and the applicant came closer together and about 20 minutes after getting in, they began kissing. They had their hands on each other with no indication that the contact was unwelcome by either party.

65He says he had his hand or hands under the water at some point and that he was rubbing her perineal area both inside and outside her suit but that he did not insert his finger into the applicant. He confirms that he had his hands and face on her breasts and that the applicant was straddling him at some point. During all of this time, his evidence is that there was no indication from the applicant that any of the contact was unwelcome. In fact, she continued to touch him intimately, kiss him and occasionally straddle him throughout this time and was actively participating.

66When they decided to discontinue their contact, he says it was a mutual decision. They both felt a bit ashamed because they were both married to other people and they got out of the hot tub. He says he began collecting his equipment from the common areas because he was due to leave early the next morning for his next job.

67He says the whole episode seemed consensual to him because of the applicant’s body language and reciprocal behaviour. For example, he says she did not ask him if she could kiss him, she just did it and he had the impression that she wanted him to kiss her.

68He says he did not hear any comments alleged to have been made by either Ms. Baidya or the respondent Jarvis as he was quite focused on the applicant at the time.

69The next morning, he was scheduled to leave for Chicago early in the morning and, when he was packing up his equipment in the kitchen area, he says the applicant came to see him dressed in her nightgown to say goodbye.

70The next time he saw her was on May 23, 2008 when he dropped in to the offices of JRA. He says the applicant came to see him and that she asked him to send her pictures from the trip, which he did. He also says that the applicant called him at home later and spoke to him briefly. He says they did not discuss the night of the 14th during either conversation.

71The respondent McColl says his family went on a vacation shortly afterwards and when he and his wife returned, he found several voice mails from the applicant’s husband accusing him variously of having a wild sex vacation with his wife, drugging and raping her, manipulating the children and having a premeditated and elaborate plan to seduce his wife.

72The applicant’s husband, Mr. Emery had also left a message for the respondent McColl’s wife asking that she call him so that he could provide her with a shoulder to cry on and that he “wanted to be there for her”.

73The respondent McColl’s elderly neighbour reported to him that while they had been on vacation a tall man in a ponytail, fitting Mr. Emery’s description, had come to his home, damaged his garden and behaved strangely.

74After an unsuccessful attempt at speaking to the applicant and her husband that yielded no results, the respondent McColl eventually had a lawyer write a letter to the applicant and her husband asking that they stop contacting him and his wife.

Cathy Sowrey and Julie Branning

75Neither Cathy Sowrey nor Julie Branning attended the event in North Carolina. Upon her return, the applicant went out to lunch with them. Ms. Sowrey testified that during that lunch the applicant told her she had “fooled around” with the respondent McColl. She appeared to be happy about what had happened and expressed no concerns about missing time, gaps in memory, drugging or assault.

76She was also part of an email exchange between the applicant and herself when the respondent McColl came to the office in the weeks following the return from North Carolina. She said the applicant seemed excited rather than concerned to see him and showed her the pictures from the trip he had sent her.

77In the email exchange on May 23, 2008, the applicant sent Cathy Sowrey an email with the subject line “did you see!” and “Who’s here” in the body. In a further email sent minutes later she expresses the following sentiment: “YES. Maybe we will all go to lunch!”. Cathy Sowrey’s evidence was that the applicant was referring to the respondent McColl.

78She says the applicant was distraught when she phoned on June 16 to tell her that she would not come in to work that week. She testified that she and others tried to contact the applicant in the weeks immediately following that phone call.

79Ms. Branning testified about her involvement in one such contact. She reports going to the applicant’s house. She says that she was concerned for the applicant and that she did not seem herself.

Ray Ryan’s account

80Although Ray Ryan was at the retreat in North Carolina with his partner, he had no first hand knowledge of what happened in the hot tub on the night of May 14.

81He did know the applicant quite well and was something of a mentor to her. He cited examples of their close working relationship and said that until this happened he felt they could count on each other and they trusted each other.

82He also gave examples of instances when he had helped her on a personal level, including obtaining a clearance letter from a bank by writing to a bank’s ombudsman on her behalf and lending her $4500 when her car broke down. He says he considered the applicant a friend as well as a colleague.

83He and his partner drove in a convoy type of arrangement with the applicant and her two children on May 18 on the way back home from North Carolina. He said that his partner, Molly, would ride with the applicant for part of the way while the children rode with Mr. Ryan in his car because they enjoyed riding in his sports car. He expressed surprise that the applicant would not have told Molly or himself during that journey if something untoward had happened in North Carolina.

84When she called the office in mid-June to indicate she would not be in all week and staff indicated that she seemed very upset, Mr. Ryan confirmed that he spoke to the applicant’s mother, whom he knew, and that they went to the applicant’s home together to make sure she was alright and to see if there was anything that they could do to help. They were both asked to leave by the applicant and her husband.

85He also testified that one evening a few weeks later, in the middle of a dinner party, he received a phone call from the applicant and her husband during which they told him that they believed that the applicant had been drugged and assaulted in North Carolina and that the respondent Jarvis, one of the principals in the firm, had been involved. They urged him to look into date rape drugs and their effects. They told him they did not want him to say or do anything but that they wanted him to know what had happened.

86Mr. Ryan admits that he was surprised at what he was told and that he found it hard to believe. He says that he encouraged the applicant to move on with her life. He also admits that he believed that the applicant had been caught up in a lie vis a vis her husband and that she was in trouble.

87He said he was ultimately part of the discussion that led to the firm sending the applicant a letter telling her to stop contacting members of JRA.

Robin Post

88Ms. Post was also at the retreat but had no first hand knowledge of the events of May 14. However, she commented that she had seldom seen the applicant seem happier. She had no inkling that there was any problem at the time or in the first weeks after their return home.

89She says she walked out of the office with the applicant on June 13 and they had a pleasant conversation about Ms. Post’s daughter. Later that month, phone calls were made and emails sent to the applicant to see what the problem was and why she had left the firm, to which no response was received.

90Subsequently, she confirmed that she received a request to meet with the applicant. The request was that they meet in private as the applicant did not want to talk to the respondent Jarvis. She said she did not like secret meetings and felt the applicant’s husband, Mr. Emery, was a “loose cannon” so she left a message for the applicant that she was happy to meet with her, just not in secret.

91In response to that message, she says that she received a voice mail from the applicant in which the applicant said that she was sorry that Ms. Post was “unwilling to meet with her to discuss the sexual assault”. She was shocked and spoke immediately to both Mr. Ryan and respondent Jarvis. She then received an email from the applicant’s husband accusing Peter Jarvis of having been involved in the drugging and sexual assault of his wife. She testified that she now wishes that she had called the police as soon as Mr. Emery and the applicant began making accusations of drugging and sexual assaults.

92After that, she said one of her daughters received a phone call from the applicant. Ms. Post was concerned the applicant and her husband would continue to contact other members of her family, some of whom were more vulnerable. She felt this was inappropriate and that she had no option but to send a letter from the firm’s lawyers asking that the applicant and her husband cease all contact with the firm and those connected with it.

93The applicant met with John Sully, another senior partner at JRA, on a number of occasions in the fall of 2008 in order to complete the accounting surrounding monies owed to the applicant’s company by JRA and vice versa. During those meetings, the applicant did not raise or discuss the issues of harassment, discrimination, drugging or assault with John Sully, nor was she invited to do so.

ANALYSIS

Credibility Issues

94Where 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.

Nature of the Relationship between JRA and the applicant

95The Supreme Court of Canada has consistently held that human rights statutes across Canada should be given a fair, large and liberal interpretation to advance and fulfill their purposes of preventing discrimination against identifiable protected groups: see Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.); Action travail des femmes v. Canadian National Railway Company, [1987] 1.S.C.R. 1114.

96The applicant alleges a contravention of the Code and, along with other sections, a breach of section 5(1), which states that “every person has a right to equal treatment with respect to employment without discrimination because of … sex”.

97As the Board of Inquiry stated in Payne v. Otsuka Pharmaceuticals Co Ltd., 2001 CanLII 26231 (ON H.R.T.),

Section 5(1) does not state that “no employer shall deny equal treatment to an employee”. Indeed, there is no definition of “employment” in the Code. Rather, section 5(1) involves discrimination “with respect to employment”. “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship. In Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441, the Federal Court of Appeal, in upholding the decision of the Canadian Human Rights Tribunal, stated at D/449:

Remembering the broad and liberal interpretation that must be taken to this type of legislation…[C]ourts have interpreted the words [i.e., “employ” and “employment”] broadly, finding employment relationships to exist in this context where in other contexts they might not have so found.

An infringement of section 5(1) can occur between an employee and other persons who are not “employers” in the traditional sense. For example, a trade union may be held liable in two ways: where it caused or contributed to the discrimination by participating in the formulation of the work rule that has a discriminatory effect on a complainant; or if it obstructs or blocks the efforts of an employer to accommodate: see Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 990-991.

In the Board’s view, there must be some nexus or link in the chain of discrimination between the respondent and the complainant. The Board is satisfied that this nexus “appears” to exist with regards to the parties that it has decided to add in the instant motion. [Emphasis added.]

98In the circumstances of this Application, although the applicant had independent bookkeeping clients through her company and provided services under the umbrella of JRA, she was significantly dependant on the firm for a number of things, including assignment of work, use of facilities, setting of her charge out rate to clients of the firm and supervision of the work performed by firm members.

99Previous Tribunal decisions have found relationships characterized as self-employment or independent contractors under taxation or other legislation to be covered by protection offered under employment provisions of human rights statutes. See Pannu v. Prestige Cab (1986), 1986 CanLII 6476 (AB CA), 8 C.H.R.R. D/3911 (Alta.C.A.); Yu v. Shell Canada [(2004), 2004 BCHRT 28, 49 C.H.R.R. D/56] and Szabo v. Poley, 2007 HRTO 37.

100In my view, there is sufficient evidence to conclude that this Application concerns a matter with respect to employment. In any event, whether the applicant’s relationship with the corporate respondent was in the nature of an employment relationship or a contractual one involving Phatcat, it would, in either case, be covered by the Code.

101I have no difficulty concluding that the Code applies to events that transpired away from the office and outside of normal working hours in the circumstances of this Application. The common factor between all those attending this event was the accounting firm, which is based in Ontario. Staff who did not attend were expected to work and I heard evidence that this retreat was considered a team building event in addition to the social aspects.

102I also do not see an impediment to the Tribunal assuming jurisdiction in this case because the main events took place outside of the province given that the only connection to North Carolina for all parties was the firm retreat. The basis of the relationships that took the participants to North Carolina were grounded in Ontario and there is, therefore, a sufficient connection to the province.

Harassment, Sexual Solicitation and Advances

103The Code prohibits harassment in the workplace by the employer, agent of the employer or by another employee on the basis of sex (s. 7(2)) and colour, ancestry, place of origin and ethnic origin (as well as other grounds, s. 5(2)). Harassment is defined in subsection 10(1) as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

104In addition to the harassment provisions, the Code also offers protection from sexual solicitations or advances. Section 7(3) states:

Every person has the right to be free from,

(a) 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

105The applicant’s allegations and the facts presented in support of those allegations have changed over the course of the life of the Application. Some of the central and serious allegations raised in the Application documents and with the respondents prior to the filing of the Application, were, inexplicably, not pursued during the course of the hearing and little or no evidence was led in respect of them.

106I refer specifically to the applicant’s initial contention that she had been unknowingly drugged and that she and several other female guests at the firm retreat had been surreptitiously videotaped. The Application raised these allegations but there was no credible evidence provided in support of those allegations. The applicant indicated through counsel at the hearing that she “would not be pursuing those allegations”.

107The fact that these serious allegations were made and then not pursued without explanation is a factor I have considered in making decisions as to credibility.

108By the time of the hearing, the applicant’s allegations had been narrowed further still. She took the position that she had engaged in conduct that she described as “not unwelcome” with respondent McColl in the hot tub. However, for a period of a few minutes in the midst of this largely “not unwelcome” contact, she alleges there was some physical contact with both personal respondents that she would never have consented to had she been aware of it at the time. Specifically, she says that respondent Jarvis held her legs apart while respondent McColl touched and penetrated her in the perineal area.

109What complicates matters is that she testified that for two months or more after her return from the retreat, she did not remember or have any awareness of what she now says she remembers happening during those few minutes of unwelcome contact.

110I have been offered no cogent explanation for the evolving and, frankly, unreliable nature of the applicant’s memory surrounding these remaining allegations, which are the only ones she has elected to continue to pursue. She and her husband both said during testimony that they became convinced several months after the incident that she had been drugged. However, there is no credible evidence offered in support of their conviction that any drug was administered to her and no expert evidence before me as to the relationship between any alleged drugging and the applicant’s evolving memories.

111As such, I am unable to accept her present, alleged memory of events, of which she claims she had no contemporaneous awareness or recollection for approximately two months afterwards. Furthermore, she claims that she is still recalling new aspects of the May 14 events.

112The applicant’s questionable explanation regarding her staggered recollection coupled with her resiling from and then repeating, without explanation, serious allegations made concerning the drugging of drinks by various people and videotaping of a number of people without their consent, lead me to reject the applicant’s version of what transpired on the night in question. It causes me some concern that the applicant and her spouse continued to raise the possibility that she was drugged without her consent, without giving any specific supporting evidence, after indicating through counsel that she would not be pursuing this allegation.

113I am left, therefore, with the versions of the events presented by the three remaining people present, two of whom are personal respondents in this matter.

114Ms. Baidya, the only person present during the events who is not a party to these proceedings, provided the most reliable account.

115Ms. Baidya was rather unequivocal in her view, based on observations of the applicant’s actions and comments, that the applicant did not find unwelcome or object to the personal respondents’ behaviour or contact. Instead, she testified that the applicant appeared to be “into it” and that she “looked like she was having a good time”.

116Ms. Baidya was quite clear that she did not see the respondent Jarvis hold the applicant’s legs apart either with his hands or his legs and it appears from everyone’s account that Ms. Baidya and the respondent Jarvis were in each other’s company throughout the material time.

117Further, Ms. Baidya’s account conforms with the version of events presented to the Tribunal by the two personal respondents and is consistent with the applicant’s own behaviour in the moments, days and weeks following the events in question.

118The following factors also conform with the above conclusion:

(a) the applicant’s actions immediately upon exiting the hot tub, when she told Ms. Baidya that “nothing happened”, do not suggest that she was in a drugged state, incapable of communicating clearly or otherwise not in control of her actions;

(b) the applicant waking up early the next morning to bid farewell to one of her alleged violators;

(c) the fact that the applicant did not tell her mentor at the firm, Mr. Ryan or his partner about any difficulties during their joint trip home or exhibit any behaviour that might suggest that she was upset about what had happened;

(d) the subsequent reporting of consensual conduct to Ms. Sowrey upon her return home; and

(e) the tone of the emails sent to both Ms. Sowrey and respondent McColl within weeks after May 14.

119I am unable to conclude that the applicant has met the burden of proof that she bears in this matter. The evidence before me does not establish that she was subject to a course of vexatious comment or conduct or a sexual solicitation or advance from a position in authority that was known or ought reasonably to be known to be unwelcome.

120The applicant made further arguments concerning the additional responsibilities borne by the respondent Jarvis as the managing partner of JRA. She argued that he violated section 7(3) of the Code by participating in and condoning a sexualized environment before and during the hot tub incident. The applicant suggests that he engineered the episode in the hot tub for his own and his client’s sexual gratification.

121The applicant relies on the Tribunal’s decision in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, for the proposition that, because of the power imbalance, a superior must constantly ensure there is no misunderstanding when pursuing an interest in an employee.

122This argument requires that I accept that the respondent Jarvis displayed an interest in the applicant and that he somehow engineered her presence in the hot tub on the night in question. The evidence does not support this conclusion. There is nothing to suggest that he pursued the applicant and, conversely, ample evidence of a mutual flirtation between the respondent McColl and the applicant.

123Even though it was the respondent Jarvis’ suggestion that the party of four repair to the hot tub, there is no indication that he coerced either Ms. Baidya or the applicant into going or that this was part of some larger campaign by him to arrange for his or the respondent McColl’s sexual gratification as argued by the applicant.

124Attendance at this function was not required. There is nothing in the evidence to suggest that someone who had chosen not to attend the function in North Carolina, chosen not to consume alcohol and chosen not to accept an invitation to go to the hot tub would have suffered adverse consequences as a result of those choices.

125It appears from the evidence that the applicant chose to attend the event with her children, consume alcohol during the course of the day, go to the common area after her children went to their room, accept an invitation to go to the hot tub, return to her room to change into her swimsuit and then rejoin the others at the hot tub area.

126The other argument advanced by the applicant is that the respondent Jarvis breached his common law duty of care to the applicant as her superior by not ensuring an environment free of sexual discrimination and harassment, thereby breaching his, and by extension, JRA’s duties under s. 5(1) of the Code. The applicant suggests that the Tribunal take judicial notice of the proposition that “alcohol is well known to increase risks regarding the likelihood of sexual contact”.

127The evidence I heard from all witnesses other than the applicant that were present at the retreat was that most people contributed to buying a communal supply of alcohol that was occasionally served by a bartender and from which people served themselves. Participating in the hot tub interlude also appears to have been an entirely voluntary activity entered into by mature adults.

128As I have indicated above, there is no evidence that those who chose not to travel to North Carolina for this event were adversely impacted and I find this situation to be distinguishable from others where an employee has no option but to participate in an activity or enter an environment that is poisoned by being overly and inappropriately sexualized because participation is part of the essential duties of their employment situation.

129Given my finding it is unnecessary for me to address the applicant’s request that I take judicial notice of the proposition outlined above.

JRA’s Duty to Investigate Complaint

130It 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.

131The 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 Inc., 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.

132The 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?

133The 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.

134An 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.

135In this case, given my finding that this is an Application with respect to employment, even though it is agreed that the applicant was not in a traditional employer/employee relationship with JRA, the question to be determined is whether JRA took reasonable steps once the applicant communicated her complaint to them.

136Her initial report to Mr. Ryan at his home was accompanied by a request that he not take any steps but that he read the articles about date rape drugs that the applicant’s husband had sent him.

137The applicant subsequently contacted Ms. Post and asked to meet with her privately so she could talk to her about what happened and that she did not want to talk to the respondent Jarvis. Her evidence and that of Ms. Post is that Ms. Post responded by saying that she was prepared to meet with her but not in private or “secret”.

138Mr. Ryan’s evidence was that the unofficial policy with respect to any concerns was “speak and ye shall be heard”. When asked what happened when the complaint was about one of the partners, he said that the person would go to one of the other partners to raise the issue. That appears to be exactly what the applicant did.

139While Ms. Post did not agree to meet with the applicant privately, it appears that Ms. Post may have been willing to meet with her but just not surreptitiously, with or without Peter Jarvis present. In any event, no meeting ever took place and the applicant did not have an opportunity to meet with JRA personnel to explain her concerns.

140The factors outlined in Laskowska require the existence and awareness of a human rights policy. The policy presented to me on the last day of hearing by Robin Post contained references to “barristers” and was clearly not created for JRA’s work environment and awareness of the policy was spotty even among senior members; for example, Ray Ryan was not aware a policy existed.

141There is also a requirement that an employer treat a complaint seriously, deal with it promptly and sensitively. While the response may have been prompt, it cannot be seen to have been taken seriously or dealt with sensitively. Ray Ryan’s advice to the applicant that she move on and the failure of JRA to present an alternative method by which she could put her concerns before them are, in my view, not reasonable.

142In my view, at the very least, the reasonable thing for the respondent JRA to have done would have been to allow the applicant an opportunity to explain why she needed to make the complaint and to have given her an opportunity to lay out her concerns either in person or in writing. I find this obligation exists despite what JRA may have thought of the merits of the concerns being raised or the unorthodox and inappropriate manner in which the applicant was raising her concerns.

143The fact is that the applicant was saying that she had suffered some form of assault during a JRA sponsored event. Even if JRA thought her complaint unlikely to be found to be true and, given the circumstances, although there was discomfort in meeting with the applicant, privately or otherwise, there were other options open to JRA. The applicant could have been invited to put her concerns in writing, following which JRA could have considered their options, which may have ultimately led to the same result: the sending of a cease and desist letter. The firm’s failure to provide the applicant this opportunity constitutes a violation of their obligations under the Code.

REMEDY

144Section 45.2 (1) of the Code reads as follows:

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

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

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

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

145The applicant seeks $113,796 for lost income from Peter Jarvis and JRA, a total of $85,000 in general damages from the various respondents, a positive letter of reference and public interest remedies including development of a human rights policy and training for all partners, managers and staff.

146Although I have found that there has been a breach of the Code with respect to the corporate respondent JRA’s failure to take reasonable steps upon being presented with a complaint by the applicant, under the circumstances and given my findings on the issue of whether harassment, discrimination and sexual solicitation and advances took place, I do not believe that this is an appropriate case for the award of monetary compensation.

147The fact that the applicant chose not to speak to Mr. Ryan when he made contact after June 16, 2008 but before her resignation, her instruction to him to take no steps when she phoned him at home to disclose her concerns and the impropriety of contacting family members of JRA who had no involvement in firm business are some of the factors that lead me to the conclusion that the applicant would not have had any relief unless the respondent JRA accepted her account of what happened. Given my findings with respect to whether harassment, discrimination, sexual solicitations or advances occurred, the respondent JRA’s failure to investigate would not ultimately have had any discernable impact on the applicant. Therefore, in my view, no monetary award is warranted in this case.

148Instead, given the dearth of an adequate or comprehensive policy and the lack of a meaningful complaints and investigation process within JRA, within 90 days of this Decision, I find it appropriate to order that JRA hire a human rights expert at its own expense to develop a human rights policy as well as a complaints and investigation procedure that complies with Ontario Human Rights Commission guidelines. Training on this policy should be provided to all principals, managers, supervisors and staff.

149To remedy what appears to be a complete lack of knowledge about their obligations under the Code, my view is that all the principals, managers and supervisors at JRA would benefit from training on their obligations under the Code. Accordingly, I also order that they complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel within 90 days of this Decision that they have done so.

ORDER

150Having found that a violation of the Code occurred, I make the following order:

(a) Within 90 days of the date of this Decision, the principals of Jarvis Ryan Associates Inc. will complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel within 90 days of this Decision that they have done so.

(b) Within 90 days of the date of this Decision, Jarvis Ryan Associates Inc. will hire an independent human rights expert at its own expense to develop a human rights policy as well as a complaints and investigation procedure that complies with Ontario Human Rights Commission guidelines. Training on this policy will be provided to all principals, managers, supervisors and staff. Jarvis Ryan Associates Inc. will provide confirmation to the applicant’s counsel of completion within 90 days of this Decision.