Harriott v. National Money Mart Co.

2008-00373-I

2010-02-17

2010 HRTO 353

Ontario Human Rights Tribunal

CHRR Doc. 10-0412

Marjorie Harriott Applicant

v.

National Money Mart Company and Desmond Wade Respondents

Date of Decision: February 17, 2010

Before: Human Rights Tribunal of Ontario, Alan Whyte

File No.: 2008-00373-I

Appearances by:

Kate Sellar, Counsel for the Applicant

Katherine E. Ford, Counsel for the Respondents

SEXUAL HARASSMENT — definition of sexual harassment — poisoned work environment — sexual advances by supervisor — verbal abuse and denigration — reprisal for complaining about harassment — EVIDENCE — similar fact evidence — credibility of witnesses

EMPLOYMENT — obligation to provide discrimination-free workplace — Wall test for reasonableness of employer investigation — DISCRIMINATION — job performance as reasonable cause

DAMAGES — damages assessed for sexual harassment — determining quantum by considering previous awards — REMEDIES — anti-harassment policy

Summary: The Human Rights Tribunal of Ontario ruled that National Money Mart Co. and Desmond Wade were liable for three breaches of the Ontario Human Rights Code arising from the sexual harassment of an employee, Marjorie Harriott.

National Money Mart is in the business of conducting financial transactions on behalf of its customers, such as payday loans, the wiring of money, collections, and the selling of MasterCard. It has a number of branches in the Greater Toronto Area. Ms. Harriott was employed as a Customer Service Representative from April 2007 to June 2008 when her employment was terminated.

Throughout this period, her immediate supervisor was Desmond Wade. Accepting evidence from Ms. Harriott, and other employees who had experienced similar conduct, the Tribunal concluded that Mr. Wade sexually harassed Ms. Harriott by staring and leering at her, bumping up against her, touching her unnecessarily, and making sexualized and sometimes derogatory comments about her and other women. Over time, Ms. Harriott found this conduct extremely distressing. She became anxious, and frightened at work. She could not sleep, had nightmares and vomited at work.

The Tribunal also concluded that Mr. Wade's conduct created a poisoned work environment, in which Ms. Harriott, other female employees and female customers were sexualized, commented on, touched and stared at.

The employer failed to investigate the various complaints about Mr. Wade that were made by Ms. Harriott and others. The District Manager, Tania O'Neil, was advised on a number of occasions by a number of different people that Mr. Wade's conduct in the workplace was inappropriate and likely constituted sexual harassment. Despite that, Ms. O'Neil did not initiate an investigation. The result was that the period during which the complainant experienced sexual harassment was drawn out. The law imposes an obligation on employers to promptly investigate sexual harassment precisely in order to minimize the time that the victim of the harassment is required to endure it.

The Tribunal ordered damages to Ms. Harriott for sexual harassment, a poisoned work environment and failure to investigate her complaints of sexual harassment, in the amount of $30,000. In addition, the Tribunal ordered the employer to revise its sexual harassment policy, and to conduct training of its managerial personnel within six months.

CASES CITED

ADGA Group Consultants Inc. v. Lane (2008), 64 C.H.R.R. D/132, 2008 CanLII 39605 (Ont. Div.Ct.): 139

Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155, [1980] O.H.R.B.I.D. No. 16 (QL): 6

Cameron v. Giorgio & Lim Restaurant (1993), 1993 CanLII 16493 (NS HRC), 21 C.H.R.R. D/79 (N.S. Bd.Inq.): 111

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 10

Hill-Leclair v. Booth (No. 3) (2009), 68 C.H.R.R. D/299, 2009 HRTO 1629: 150

Hope v. Maplewood Painting (2009), 67 C.H.R.R. D/168, 2009 HRTO 595: 149

Howard v. deRuiter (2004), CHRR Doc. 04-165, 2004 HRTO 8: 108

Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177, [2002] O.J. No. 1504 (QL) (Div.Ct.): 127

Laskowska v. Marineland of Canada Inc. (2005), 53 C.H.R.R. D/262, 2005 HRTO 30: 115, 123

Ontario (Human Rights Comm.) v. Dofasco Inc. (No. 3) (2001), 2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500, [2001] O.H.R.B.I.D. No. 8 (QL): 7

Ratneiya v. Daniel & Krumeh (2009), CHRR Doc. 09-2403, 2009 HRTO 1824: 150

R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56: 8

Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 138

Simpson v. Consumers' Assn. of Canada (2001), 2001 CanLII 23994 (ON CA), 57 O.R. (3d) 351 (C.A.): 108

Smith v. Menzies Chrysler Inc. (No. 2) (2009), 68 C.H.R.R. D/374, 2009 HRTO 1936: 99, 110, 139, 149

Streeter v. HR Technologies Inc. (No. 3) (2009), CHRR Doc. 09-1214, 2009 HRTO 841: 101, 108

Washington v. Toronto Police Services Board (No. 3) (2009), CHRR Doc. 09-0324, 2009 HRTO 217: 7

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43

s. 128: 156

s. 129: 156

Human Rights Code, R.S.O. 1990, c. H.19

s. 5: 4, 120

s. 5(1): 110, 125

s. 5(2): 109

s. 7(2): 4, 109, 125

s. 7(3): 4

s. 7(3)(a): 105

s. 8: 4, 127

s. 10: 4

s. 34: 1

s. 45.2(1): 136

AUTHORITIES CITED

Sopinka, John, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999): 7

INTRODUCTION

1This is an application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") which alleges discrimination in employment on the basis of sex and sexual solicitation or advances, as well as reprisal.

2The application was heard over the course of four days, during which I heard evidence from the applicant, the applicant's witnesses Cheryl Pike, Marianne Smith, Danny Yu and Shannon Wright, as well as the individual respondent Desmond Wade ("Mr. Wade") and a District Manager employed by the corporate respondent (the "company"), Kim Norton.

The issues

3This case raises a number of issues related to the general area of sexual harassment, as follows:

(a) did Mr. Wade sexually harass or solicit the applicant, thereby violating the Code?

(b) was the applicant exposed to a poisoned work environment while working at the branch managed by Mr. Wade?

(c) was the company's investigation of the applicant's complaint of sexual harassment reasonable in the circumstances?

(d) was the applicant's employment terminated by the company as a result of making a complaint of sexual harassment against Mr. Wade?

(e) if there was a breach of the Code, what are the appropriate remedies?

Law

4It is useful to set out the applicable provisions of the Code:

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.

(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.

(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.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. . . .

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

Similar Fact Evidence

5As it was the applicant's intention to call a number of witnesses who would give similar fact evidence, the parties argued at the beginning of the case whether such evidence would be admitted during the hearing, and if so, on what basis. I rendered an oral ruling on these issues which is reflected below.

6The respondent objected to the applicant calling her four "similar fact" witnesses. It was argued that these witnesses could only give hearsay or, in some cases, double hearsay evidence and that such evidence should be rejected by the Tribunal. It was submitted, on the basis of Bell v. Ladas, [1980] O.H.R.B.I.D. No. 16 (QL) [1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155], that the test for the admission of similar fact evidence before the Tribunal is that of "striking similarity". It was further argued that there is a general rule against the admission of character evidence, given the risk of its prejudicial effect. Finally, it was stated that the proposed evidence of the four witnesses was of little or no probative value.

7The applicant relied on Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8 (QL) [2001 CanLII 26216 (ON HRT), 39 C.H.R.R. D/500], which adopted certain passages from John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Butterworths: Toronto, 1999), which indicates that in exceptional circumstances, similar fact evidence will be admissible if it is relevant to an issue in the case and if its probative value outweighs the prejudice to the opposite party that may arise from the admission of such evidence. In that same case, the Board of Inquiry went on to indicate that, in order for evidence to be found to be logically probative to a material issue in the case, the evidence must be cogent and have a demonstrable nexus to the issues before the Board. The applicant also pointed out that this "balancing test" was recently adopted in Washington v. Toronto Police Services Board (No. 3), 2009 HRTO 217 [CHRR Doc. 09-0324], where the Tribunal applied such a test in the context of the production of documents.

8I ruled that the four proposed witnesses would be heard as it appeared that the probative value of their evidence would outweigh the prejudice flowing from the admission of that evidence. It is clear that the applicant was alleging a pattern of conduct on the part of Mr. Wade which could be addressed by at least some of the four witnesses. It appeared that there was sufficient similarity between their proposed evidence and the allegations against Mr. Wade. In addition, some of the factors set by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, such as the proximity in time and place, the extent of the similarity of the details, the number of occurrences, the circumstances surrounding or relating to the similar acts, and any distinctive features unifying the incidents operated in favour of the admission of the similar fact evidence in this case. However, I circumscribed the evidence to be given by the four witnesses by indicating that:

· they should give direct first-hand evidence regarding their experiences with the respondent. The witnesses would only be permitted to give evidence about the fact that they either made a complaint about Mr. Wade or received a complaint regarding Mr. Wade's conduct before the applicant's complaint was made. I found such evidence to be relevant to the issues identified by the parties during argument such as the alleged poisoned work environment and certain issues related to the liability of the company. I indicated that I would receive such evidence not for the truth of the complaint as I had a concern about double hearsay. With respect to "single" hearsay, I indicated that I would rule on any issues that arose during the conduct of the hearing.

· I ruled that I would not hear evidence from any witness regarding the general character of Mr. Wade as such evidence would be distracting, not sufficiently probative and prejudicial to Mr. Wade.

I left it to the parties to raise any issues which contravened the above ruling during the evidence of the four witnesses. No such issues were raised.

Credibility of the Witnesses

9As I propose to make factual findings in the next section of this decision which in many cases will be based on the credibility of the witnesses, I set out here the principles that I have followed in making such credibility assessments.

10The classic statement related to the assessment of credibility of witnesses in a legal proceeding is found in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

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 the 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. . .

This passage emphasizes the necessity for an objective assessment to be made as to whether or not the witness' evidence "makes sense". While this is certainly true, an important factor going into the assessment of credibility is the demeanour of the witnesses while giving evidence. In addition, the manner of speech of the witnesses is often telling in terms of their credibility.

11In this case, I found that the applicant gave her evidence in a straightforward and direct manner, despite the fact that she was understandably quite nervous. She was able to describe with considerable certainty and precision the various incidents of harassment and discrimination that she alleged took place. Her evidence was not seriously disturbed on cross-examination. I do not believe that she exaggerated her evidence in any material way. Overall, I found her to be a credible witness.

12The applicant's four "similar fact" witnesses, while somewhat differently situated in relation to their employment with the company, were generally credible in the giving of their evidence. Ms. Pike, Mr. Yu and Ms. Smith are all still employees of the company, while Ms. Wright left the company's employ in August 2008. All gave their evidence in a straightforward manner and with the exception of Ms. Wright, whose anti-company sentiment was not extreme, appeared to be neutral in their leanings as between the applicant and the company.

13I had some concerns about the manner in which Mr. Wade gave his evidence. He was quite hesitant in answering some of the questions posed to him. At times, he would give overly long-winded answers in response to easy questions, then he would give very short, even curt, answers to harder questions. On other occasions, however, he would give very lengthy answers when such answers were not required. On many occasions, when confronted by one of the allegations made against him by the applicant, his answer was simply a general denial, not involving any explanation as to why the allegation was inaccurate or was not to be believed. In short, I found his evidence to be somewhat evasive, insubstantial and in general, not credible. That is not to say that I disbelieved his evidence completely; however, where there is a direct conflict between the evidence given by the applicant or one of her four witnesses on one hand, versus the evidence given by Mr. Wade on the other, I generally prefer the evidence given by the applicant or her four witnesses.

THE EVIDENCE AND FACTUAL FINDINGS

The Company's Business and the Workplace

14The company is in the business of conducting financial transactions on behalf of its customers, such as payday loans, the wiring of money from one location to another, following up on collections, the selling of Mastercards, etc. It operates through a branch network and there were a number of branches in the Greater Toronto area referred to in the course of the evidence.

15Each branch is staffed by Customer Service Representatives (CSRs), of which the applicant was one. The role of the CSR is focused on servicing the company's customers, ensuring that the monies kept in a branch are accurately counted and accounted for, keeping the supplies such as forms stocked, cleaning the branch when required, and the like.

16Generally speaking, each branch has a Branch Manager who is responsible for the operations of the branch as well as the branch's staff of CSRs. From time to time, there may be no Branch Manager in place, in which case the District Manager plays that role. Mr. Wade was the applicant's Branch Manager and therefore her immediate supervisor for much of her employment with the company, specifically from July 2007 until January 2008.

17The Branch Manager reports to the District Manager, which is a position that has responsibility for a number of branches within a region. The District Manager is, in a general way, responsible for the operation of the branches within her region, albeit not at a day-to-day level as is the case with the Branch Manager. There were two District Managers referred to in the evidence: Tania O'Neil and Kim Norton.

18The company has certain centralized resources including a Human Resources department. Human Resources, as is typically the case, provides direction to management on staff/personnel matters that arise in the organization, including at the CSR level. The Human Resources Manager who was referred to in the evidence was Patrice-Gerard Blais.

19With certain small exceptions, the workplace in which it is alleged the sexual harassment took place was store number 833, located on Danforth Avenue in Toronto, of which Mr. Wade was Branch Manager. This store is in a building which used to be an old-fashioned bank with a lobby area, three to five wickets with computer monitors (there was a discrepancy in the evidence on this point) at which the customers are served, a security door from the lobby to the back area of the building, a safe against the back wall of the building in a small confined area, an area outside the safe with a table and two chairs where the money in the branch is counted, and other areas that need not be referred to in this decision.

20The branch was typically operated with four or five CSRs, virtually all of whom were female. These employees worked shifts of varying lengths as required to cover the business day which ran from 8:30 a.m. to 9:30 p.m. Accordingly, except perhaps at the beginning and end of the day, there typically was significant overlap among the CSRs and as between the CSRs and Mr. Wade as Branch Manager.

The Applicant

21The applicant started work as a CSR with the company in April 2007 and was terminated from her employment on June 30, 2008. She is single with a son in his late teens, does not have advanced education, earned a relatively low wage and gave evidence that she enjoyed her job as a CSR (other than the harassment and discrimination she experienced) and that she needed to retain her employment in order to support herself and her son.

Mr. Wade

22Mr. Wade started his employment with the company as a Branch Manager in December 2006 and resigned from the company in November 2008. In that role, he was responsible for the overall operations of the branch, its financial assets, and its employees. With respect to the latter, he was in charge of scheduling, performance management/ evaluation, discipline and ensuring that the CSRs performed their duties properly. It appeared from the evidence that, as a Branch Manager, Mr. Wade would not have the authority to terminate a CSR on his own, as that decision rests at the District Manager level.

23I will now proceed to review the various allegations of discrimination and harassment, as well as reprisal, and will make factual findings with respect to each.

Leering/Staring

24The applicant gave evidence that, on a regular and continuous basis, she observed Mr. Wade staring at various parts of her body, usually at her breasts but also at her "butt". She said that Mr. Wade would not only look at her breasts, but also those of Jessica and Courtney, two other young CSRs who worked in the same branch. She described specific incidents relating to Jessica and Courtney where he stared at their breasts. She also gave evidence that she saw him staring at the breasts of customers on several occasions, to the extent that one customer told her that he was making her feel uncomfortable. She also related that, in connection with her cleaning duties in the branch, she would lean over in order to empty the garbage and she would often catch Mr. Wade staring at her rear end. She also described an incident where Courtney came to work one day dressed in low-cut black pants, leaned over while performing her duties in such a way as to reveal her G-string underwear, while Mr. Wade stared at her rear end. The applicant said "Desmond!" and he walked away with a smirk on his face.

25The applicant said that she viewed this behaviour on the part of Mr. Wade to be sexualized and that it made her feel very uncomfortable. She said that she thought he should maintain eye contact with his employees, and that his failure to do so caused her to lose respect for him. She felt that his conduct was inappropriate because, as a manager, he was supposed to be setting the standards in the workplace. She didn't feel right about what seemed to her to be his flirting with his employees and the company's customers. However, she did not verbalize her discomfort with respect to Mr. Wade's conduct as she was concerned about keeping her job and as she did not find Mr. Wade to be approachable about many things.

26Ms. Smith gave evidence about her observations of Mr. Wade during the time frame in the spring of 2007 when he was training to be a Branch Manager at store 830. She said that she saw Mr. Wade on a number of occasions looking the three female employees in the branch (two of whom were young, around 20 years of age) up and down. She also observed him looking at their breasts and rear ends. She said that he saw him conduct himself in a similar manner towards the female customers of the branch towards whom he was flirtatious. In fact, she described meeting a female customer of the branch at a bus stop after the customer had attended at the branch to conduct business, who was quite upset about Mr. Wade's conduct towards her while at the branch. The customer asked Ms. Smith "What's wrong with that man?" and said that she wished that Mr. Wade would just serve her and let her out of there. Ms. Smith attempted to placate the customer, and reported the matter to Mr. Yu who was the manager of that particular branch (who advised her to report the matter to Ms. O'Neil); however, the customer did not return to conduct business again at the branch. Overall, she said that she couldn't believe Mr. Wade's conduct as he was training to be a Branch Manager at the time, and he made her feel very uncomfortable.

27Ms. Smith also related how she and Kisha and Iliana (the two young female employees) met Ms. O'Neil at the same branch in the time frame when Mr. Wade was training at the branch, which was approximately April 2007. She told Ms. O'Neil about Mr. Wade's staring, that she didn't appreciate his conduct, and that he was making inappropriate comments about females. Kisha and Iliana told Ms. O'Neil how they felt. Ms. O'Neil's response was to ask if they were sure about their allegations, to which they replied that they were and they reiterated that Mr. Wade's conduct could not go on any longer. Ms. O'Neil's advice to them was to talk to Mr. Wade and get him to understand that what he was doing was bothering them. In effect, she told them to work it out with Mr. Wade. Ms. Smith indicated that she was shocked by Ms. O'Neil's response, as she (Ms. Smith) thought that Ms. O'Neil was the one to handle the situation. She went on to say that she understood that Iliana later spoke to Mr. Wade about the concerns and that she thinks "the message" got through to him.

28Mr. Yu confirmed that he received a complaint from Ms. Smith, Kisha and Iliana about Mr. Wade staring at their breasts and rear ends and their discomfort with Mr. Wade. His advice to them was to report the matter to Ms. O'Neil who, as the District Manager, was responsible to find a solution. He was aware that they did make that report to Ms. O'Neil and he was also aware that Iliana spoke to Mr. Wade following the meeting with Ms. O'Neil. However, he indicated that Mr. Wade's behaviour did not change following his discussion with Iliana, as he received a complaint from the same three employees following that discussion.

29Mr. Yu also stated that he observed Mr. Wade attempting to insert himself into transactions being conducted by CSRs with attractive female customers. In fact, Mr. Yu said that this occurred with respect to a customer that he was serving. He said that he received a complaint from a regular female customer who advised him that she felt uncomfortable with Mr. Wade looking her over.

30Mr. Yu also gave evidence that he received a complaint from Ms. Wright, who worked at his branch for about three months. The complaint was that Mr. Wade was staring at her sexually. His advice to her was the same as that mentioned above: report the matter to Ms. O'Neil.

31Ms. Wright started to work at the Danforth branch where Mr. Wade was manager in May or June 2007. She stated that, at her first meeting with Mr. Wade, he was continually staring at her breasts with virtually no eye contact. This went on to the extent that she was required to say to Mr. Wade "I'm up here" in an effort to have him look at her face instead of her breasts. Apparently, Mr. Wade had no reaction to this comment. Mr. Wade's conduct made Ms. Wright feel very uncomfortable and she thought he was very unprofessional to be acting in this way as a manager.

32Mr. Wade's position with respect to all of these allegations was that of denial, except that he acknowledged that Iliana had spoken to him about her concerns and those of the other two female employees with respect to his conduct in the spring of 2007. He said that he corrected his behaviour following that discussion and that, from his point of view, there were no problems thereafter. He said that, to the extent that he was ever observed to be staring, there was nothing sexual about it.

33I find that Mr. Wade engaged in leering and staring in relation to the female employees with whom he worked, including the applicant. In my view, the staring was sexualized as it focused on the breasts and rear ends of the female employees. The evidence indicated that the conduct was unwelcome and all of the witnesses who attested to this conduct indicated that it made them feel very uncomfortable.

Derogatory Comments Towards Women

34The applicant alleged that, on a fairly regular basis, Mr. Wade would make derogatory/sexualized comments about his female employees and some of the female customers. For example, she related an incident involving Liana, a co-worker, who arrived late one day and proceeded to the bathroom. The applicant heard Mr. Wade say, "Is that sperm that I smell?". She also gave evidence that, on one occasion where Liana did not show up for work, Mr. Wade referred to her as a fat slob. He would comment about the female customers' nice breasts and "butts", or would call them "bitches" or say that they looked like a "whore". He even once said in relation to Ms. O'Neil, his immediate supervisor, that she "needs a good screw, she needs a man". In terms of frequency, the applicant estimated that she would hear these comments from Mr. Wade approximately three to four times per month, although she indicated that he would make derogatory/sexualized comments about Liana more often. The applicant said that she was offended by Mr. Wade's comments and that she felt that they were completely uncalled for, especially from a manager. She emphasized that to her knowledge none of the female employees "made a pass" at Mr. Wade.

35Ms. Smith confirmed that Mr. Wade would tell sexual jokes from time to time while she was at the branch. She said that she and to her knowledge the other female employees at the branch did not appreciate Mr. Wade's attempts at humour.

36Mr. Yu gave evidence that, while Mr. Wade was at his branch for training, Iliana walked by both of them, at which time Mr. Wade said "so hot!" within Iliana's earshot.

37Ms. Wright related an incident where Mr. Wade stared at Jessica's breasts and said "Wow!" in Ms. Wright's presence. In fact, Ms. Wright went on to say that Mr. Wade crossed the line almost every time he was around a woman.

38Mr. Wade denied that he made any such comments, many of which were put to him specifically for denial. He indicated that he was raised by his mother and his grandmother and that he does not speak that way.

39I find that the comments alleged were in fact made by Mr. Wade. The evidence of Mr. Yu, Ms. Wright and Ms. Smith corroborates the applicant's evidence to a significant degree. The examples given by the applicant and her witnesses were specific and were not adequately rebutted by Mr. Wade.

Contact/Personal Space

40It was common, especially at the beginning of the time that the applicant and Mr. Wade worked in the Danforth branch, for the applicant to require some assistance from Mr. Wade when she was serving a customer at one of the wickets. The computers in the wickets area are not close to each other and are separated by a work area which is a few feet across. The applicant stated that, when she required assistance from Mr. Wade, he would move in close to her and often his shoulder would touch her shoulder. In addition, because the assistance required usually involved a transaction on the applicant's computer, he would place his hand over her hand on the mouse. She indicated that she would move away from him when he came into contact with her and that she would move her hand when he placed it over hers. She also said that her moving away and the unhappy expression on her face should have sent a message to Mr. Wade that she was not comfortable with the contact that he was making with her; however, she conceded that she never verbalized her discomfort to Mr. Wade. She said that she couldn't speak to Mr. Wade about it as she does not like confrontation and found it difficult to talk to him about things like this — she just wanted to disengage from the situation. She felt that Mr. Wade was invading her personal space unnecessarily, that it was in her view intentional behaviour on his part. She noted that, when other managers gave her assistance in the same circumstances, they would stand beside her without making contact, and if they needed to use the computer mouse, they would wait for her to remove her hand from the mouse before reaching for it. She said that Mr. Wade moved into her personal space and/or made contact with her about one to three times per week, although it was more frequent at the beginning of the time frame that she worked at his branch.

41The applicant's evidence was corroborated by Ms. Smith, who worked with Mr. Wade for about one month in the summer of 2007 while Mr. Wade was training as a manager. She said that Mr. Wade would come too close to her, often at the wicket, to the extent that it made her uncomfortable. She said that he was "right on top of me". She said that he didn't seem to think it was "a big deal" and that he would often be smiling when he was close to her. She told him to move away and it never happened again.

42Mr. Yu also corroborated the applicant's evidence by stating that he saw Mr. Wade standing too close to some of the female staff while they were working at the wicket. He said that Mr. Wade did not keep a reasonable distance between himself and the staff. He also said that Iliana had complained to him that, on a particular occasion, Mr. Wade had touched her leg below the knee, that it was not an accident, and that she was really uncomfortable as a result. This complaint was received after Ms. Smith, Kisha and Iliana had come to Mr. Yu as described above. His advice to her was to talk to Ms. O'Neil.

43Ms. Wright gave extensive evidence about contact and invasions of her personal space by Mr. Wade. She said that he would very often (almost every day) come to watch her serving customers at the wicket, and would come into contact with her, or he would lean over her or press against her side. She said that such contact was unnecessary and that he did not need to be so close in order to see her computer. She went on to say that on almost every occasion she would push him away or tell him to back off; in fact, she said to him that her favourite word was "no". She also said "no means no" in front of other employees and even in front of customers. She also said that he would touch her in other parts of the branch; for example, she would be sitting in the back of the branch at a desk, he would come up and put his hand on her shoulder and give her a little rub, as a result of which she would tell him to stop. She described him as being very "touchy".

44She also described an incident which involved her being in the vault where the safe is located. Mr. Wade came and stood at the door of the vault, and put his arms up against the frame of the vault door. At one point in their conversation Ms. Wright asked Mr. Wade to let her out, but he didn't move. At the beginning, she was making light of the situation, but as it went on, she started to get angry and started to yell at Mr. Wade. She pointed out that Mr. Wade is a big man, that he is taller than her, and that she was intimidated as a result of this situation. She said that Mr. Wade kept her in the vault for around five minutes. Finally, she advanced to within about one foot from him, and he turned sideways and allowed her to pass by him, although she had to rub up against him as she did so.

45Ms. Wright also described a situation which happened during the summer of 2007 during the hot weather. She was wearing a sun dress and a sweater and was outside the branch with Mr. Wade. She took her sweater off and Mr. Wade said "you don't have to put that back on — I enjoy the view". Ms. Wright looked at Mr. Wade and replied "I don't think so" and put her sweater on. She said that she got the sense that Mr. Wade was interested in her sexually but she emphasized that the feeling was not mutual.

46Ms. Wright also gave evidence about her observations of Mr. Wade's interaction with the other female employees in the branch. She said that he would come too close to them, that there was some contact between them, that he would put his arm around them or around the small of their backs, and such. He would not have any such contact with Courtney, but would with Liana who would later yell at him that he should not touch her. She also described an incident where Jessica was serving a customer at the wicket, contact was made with her by Mr. Wade, and Jessica said to him that he can back off now and she pushed him away. She said that he would come close and sometimes contact the females until they told him not to do it.

47Mr. Wade stated that there were occasions when he went to the wicket to assist the applicant in completing her customer transactions; however, he indicated that he did not come into contact with the applicant. He stated that he typically stood about 6 to 10 inches away from her (at the shoulder). He specifically denied putting his hand over hers on the mouse. He also stated that he did not see any uncomfortable facial expressions on the part of the applicant and that she did not say anything to him to indicate that she was uncomfortable with the situation.

48I find that Mr. Wade invaded the applicant's personal space and made unnecessary contact with her as outlined in her evidence. In addition to her own evidence, which I find to be credible, there is ample corroborative evidence from Mr. Yu, Ms. Wright and Ms. Smith about similar behaviour on his part towards them (in the case of the female employees) and their observations of Mr. Wade's conduct in relation to others.

Contact While Counting Money

49One of the functions of the staff in the branch, including the manager, is to verify the amount of money kept in the branch's safe, both at the beginning of the day and at the end of the day, and from time to time throughout the day. This verification is conducted by way of the physical counting of the money. That counting takes place at a medium-sized table in the area outside the smaller area where the safe sits. There are two chairs without arms at the table. The first staff person takes the money, passes it through a counting machine, and hands the money to the second person who then verifies the total.

50The applicant's evidence was that often when she conducted this operation with Mr. Wade (who usually was the one to pass the money through the counting machine), he would locate his chair close to hers such that she would sometimes have to move away from him. She also stated that Mr. Wade would put his hand over hers when he passed the money to her after it had gone through the counting machine. She said that such contact was not required in order to keep the bills together as they came out of the counting machine together. She also said that, when she performed the verification operation with other staff in the branch, they did not put their hands over hers in the same way as Mr. Wade did. In order to avoid contact with Mr. Wade's hand, she would change her grip when receiving the bills from him. She indicated that his contact with her hand was inappropriate, not required and that it made her feel uncomfortable; however, she did not say anything to him about it.

51Mr. Wade's evidence was that sometimes physical contact between the hands of the two staff members performing the verification operation was required in order to hold the bills together, as the money would on occasion fall to the ground. He denied touching the applicant's hand unnecessarily and emphasized that she never made any comments to him about her feeling uncomfortable as a result of any contact that did occur.

52I accept the applicant's evidence with respect to this issue. Her description of the contact during the verification procedure was convincing, particularized and had the ring of truth.

Bumping

53The applicant gave evidence that, on a number of occasions, Mr. Wade would bump into or "bounce" into her in the branch. This involved front-to-front contact and in her view was not accidental. It typically happened in an open area of the branch and she said that there was no reason for the contact to take place. She said that she did not have this problem with any other employees who worked at the branch. Usually, Mr. Wade would say "oops" or "sorry" after the contact, but the applicant did not feel that these comments were genuine. On one occasion, she said "Desmond!" after the contact, and she felt that her facial expression after these incidents should have been a message to Mr. Wade that she did not enjoy such contact.

54Mr. Wade indicated that there was a possibility that he had bumped into the applicant, but he had no clear recollection of doing so. Despite that, he went into considerable detail in his evidence about the layout of the branch, and created a diagram of the layout of the branch which was entered into evidence. He said that there were a number of areas in the branch which involved "blind corners" and that it was possible to bump into coworkers at the branch as a result.

55I accept that these bumping incidents occurred as described by the applicant. My impression from the evidence is that the branch is fairly wide open in its layout and that except perhaps on an exceptional basis, bumping into other employees would not likely occur. Once again, the applicant's evidence was sufficiently cogent on this issue to convince me that these incidents likely occurred as she described.

Contact in Safe Area

56The applicant stated that, on two occasions, Mr. Wade made contact with his front against her rear end when she was leaning over to get some money out of the safe. She said that such contact was unnecessary as he could have stepped back and waited for her to finish in the vault area, and that on these occasions there was no rush for him to access the manager's safe. His explanation would be "I'm just waiting to go to the manager's safe" which is located behind the main safe. In cross-examination, it was pointed out to the applicant that these incidents were not included in her application, and that in the police statement that she filed after her termination by the company, she did not indicate that there was any physical contact between she and Mr. Wade in these situations.

57Mr. Wade denied that these incidents occurred as described by the applicant.

58I find that, at minimum, Mr. Wade invaded the applicant's personal space by coming too close to her while she was removing money from the safe. Although the applicant's statements were somewhat inconsistent as stated above, taken as a whole, they were sufficiently cogent as to convince me that they likely occurred, at least to the extent of Mr. Wade being too close to the applicant on at least two occasions in the safe area.

Cheryl Pike's Evidence

59Ms. Pike is a manager with the company and gave evidence about three other areas that are relevant to the issues in this application. The first dealt with an interview that she did with Mr. Wade of a young female candidate. She stated that, during the course of this interview, Mr. Wade moved his chair over close to the candidate, with his legs spread wide, and made a comment that Ms. Pike couldn't exactly remember but which she inferred was sexual in nature. She indicated that the comment and the situation made "her hair stand on end". She felt very uncomfortable as a result of this experience, to the extent that she phoned Ms. O'Neil and complained about Mr. Wade's behaviour, and indicated to Ms. O'Neil that she was not prepared to do another interview with Mr. Wade. Ms. O'Neil's reaction was that she hadn't done an interview with Mr. Wade, but that he seemed okay. Ms. O'Neil did not offer to take any other action as a result of Ms. Pike's complaint.

60Ms. Pike also gave evidence that she received seven to ten calls from other female CSRs who had concerns with Mr. Wade. Although some of the calls related to Mr. Wade's punitive way of managing, most of them related to the sexualized conduct of Mr. Wade towards the employees. For example, the employees complained to Ms. Pike about Mr. Wade looking at their chests and not giving them enough space. With respect to the latter, Ms. Pike's typical advice to the callers was first, to swing their arms around in a circle so as to demarcate their personal space for Mr. Wade; if that didn't work, they should complain to Ms. O'Neil, and if that didn't work they should go to Mr. Blais. None of the females who called Ms. Pike advised her that Ms. O'Neil had taken any steps on their behalf.

61Ms. Pike also testified that she wrote two e-mails in the spring of 2008 to Human Resources (Mr. Blais in particular). She indicated that the first e-mail identified the fact that the applicant was having a lot of problems with Mr. Wade, that she (the applicant) had spoken to Ms. O'Neil a number of times, that there was conflict and things weren't working out, and could he step in. Apparently, no response was received by Ms. Pike. The second e-mail inquired as to whether or not she was doing the right thing in advising the people who were calling her to call Mr. Blais. Mr. Blais called Ms. Pike and said that it was appropriate for her to be doing that. Based on a request from the Vice-chair, the company searched for these e-mails but they could not be located.

Christmas Party

62In December 2007, the company held a Christmas party for its staff, including the CSRs. There was some competition among the District Managers to see who could get out the maximum number of staff from their regions, and this translated into pressure being exerted by Ms. O'Neil on Mr. Wade to strongly encourage his staff to attend the Christmas party. The applicant said that she did not wish to attend the Christmas party as she did not socialize outside the office with fellow employees, she did not celebrate Christmas, and that at the time, she was experiencing enough stress involving Mr. Wade as a result of his inappropriate behaviours. The applicant therefore accepted a shift at another branch on the day of the Christmas party in order to make herself unavailable. She called Mr. Wade, who was still pressuring her to go to the party, in the afternoon on the day of the party in order to indicate that she would not be able to go as she had to work late at the branch where she was. He said that she had to attend but that it was okay if she came late. She called Mr. Wade again at 6:00 p.m. to say that she couldn't go, at which time he offered her a ride. She felt that she had to go to the party as not doing so might threaten her job, so she accepted Mr. Wade's offer of a ride and he picked her up at her house. The applicant stated that she was not dressed provocatively but that, when she got into his car, he stared at her for two minutes and said that she looked nice. They arrived at the party, socialized separately and when the applicant was leaving she discovered that there were two messages on her cell phone from Mr. Wade; one was muffled and simply said that he had left the party. In cross-examination, counsel for the respondents challenged the applicant's statement that Mr. Wade had stared at her for a full two minutes, and asked the applicant to "re-create" the duration of Mr. Wade's stare in the hearing. Her stare lasted 24 seconds.

63Mr. Wade's evidence about the Christmas party differed from the applicant's in certain material respects. First, he said that the applicant asked him for a ride to the Christmas party. Second, he stated that when he picked the applicant up he did not stare at her, but in fact took a cell phone call from someone who was at the party who was telling Mr. Wade that she was having to leave the party to take a friend of hers home who was ill. Third, Mr. Wade said that he did not leave voicemail messages on the applicant's phone, and that in fact she called him at the end of the party to indicate that she would be taking a cab home.

64On balance, I prefer the applicant's version of events. The most material portion of the Christmas party incident is the staring by Mr. Wade when the applicant got into his car. Although the applicant's estimation of the length of Mr. Wade's stare is likely too long, it is common for witnesses to have difficulty accurately estimating such things as time periods and distances. In any case, the 24-second "re-creation" of the length of Mr. Wade's stare in the hearing felt lengthy. The applicant also included this incident, including Mr. Wade's staring, in her police statement which was dated July 10, 2008.

The Panic Button Incident and Subsequent Events

65Because the company's business involves the handling of large amounts of money in the branch, the company's employees wear a panic button when they are on duty. The panic button is available to the employees in the event that a robbery or other emergency event occurs. Pushing the panic button sends a signal to a security company which will then notify the police if required. The panic button is on a lanyard which hangs around the employee's neck, and the panic button itself is slightly bigger than a two dollar coin.

66The applicant gave evidence about an incident which she alleged took place approximately two days after the Christmas party but before Christmas 2007. She said that, on the day in question, she had opened the branch and Mr. Wade had come to work at about 10:30 a.m. Later that morning, she went out into the lobby area in order to replenish the supply of Western Union forms which were available for customers to use in making money transfers. She stated that, while she was performing this task, Mr. Wade was staring at her and continued to do so as he buzzed her through the security door. She was wearing a T-shirt on this day.

67The applicant said that Mr. Wade approached her and started to massage her neck. He said "let me fix your panic button" and proceeded to remove her panic button over her head, all the while staring at her breasts. He then walked away and came back to her, put the panic button around her neck, and said "try to wear something with a collar so the panic button won't chafe your skin". The applicant said that there was nothing wrong with her panic button at the time that this incident occurred, that she was absolutely shocked by Mr. Wade's conduct, and that her stress level, which was already at the 50 percent level, went to 110 percent. She said that she was very upset for the rest of the day, suffered a panic attack, was snappy towards Mr. Wade, was not performing with the customers that she served and that generally she was not herself. She indicated that she could hardly wait to get out of the branch in order to go home.

68Mr. Yu gave evidence that during the period of time that the applicant had helped out at his branch they had developed good communication with each other. He said that, about six to eight months after the applicant had helped out, she contacted him to report that she had been kissed on the neck by Mr. Wade and that he was staring at her chest. His advice to the applicant was to speak to Human Resources so that they could take the proper action.

69Mr. Wade vehemently denied that this incident occurred as described by the applicant. He said there was an incident in late November or early December wherein the applicant forgot to bring her panic button to work one day, as a result of which Mr. Wade lent her a panic button. He did not put the panic button over her head on that occasion or at any other time. He also mentioned another incident where the applicant had accidentally triggered the panic button and Mr. Wade had to make a call to the security company in order to cancel the call. He also recalled another conversation which occurred with the applicant because she had been rubbing her neck, apparently as a result of the panic button chafing her neck. He said to her on that occasion that if she had a collar on her shirt chafing wouldn't be a problem.

70The applicant reported this incident and other aspects of the harassment that she was experiencing from Mr. Wade to Carlos Alverzo, a manager at another branch where she had trained. She had spoken to Mr. Alverzo on a number of occasions before this particular conversation, during which Mr. Alverzo kept asking the applicant whether she had reported the incidents of harassment to Ms. O'Neil. She responded that she had not because she felt that she couldn't talk to Ms. O'Neil and that she would not be believed. She told him about Mr. Wade's touching, "bouncing", touching in the vicinity of the safe, and the massaging of her neck. Mr. Alverzo suggested to the applicant that she report her issues to Human Resources, and he said that he would talk to Ms. O'Neil as well.

71The applicant said that Mr. Alverzo reported back to her and said that Ms. O'Neil had told him that she thought Mr. Wade had stopped. Mr. Alverzo also gave the applicant a "heads up" by saying that Ms. O'Neil had told him that she thought that the applicant was a troublemaker and that she was going to get rid of the applicant. The applicant also said that she spoke with a friend of hers who was a manager at a company about the harassment.

72The applicant noted that, in this time frame, despite the fact that Ms. O'Neil had apparently been alerted by Mr. Alverzo to her harassment issues, the applicant received no contact whatsoever from Ms. O'Neil to discuss the possibility of a transfer from Mr. Wade's branch or some other way of dealing with the matter.

73On January 7, 2008, the applicant phoned Patrice-Gerard Blais, the regional Human Resources Manager for Eastern Canada. She said that she was upset and crying during the course of their discussion, which lasted between three and four minutes. She told Mr. Blais what was happening in a general way and indicated that she would provide more details to him later. However, she advised that she was experiencing sexual harassment and mentioned things like Mr. Wade's massaging of her neck and his touching. Mr. Blais asked her to send him a letter, but that he could not take any action until he received that letter. He indicated that he would keep the matter confidential. The applicant noted that Mr. Blais did not offer to transfer her during the course of this discussion.

74On January 21, the applicant sent a letter by e-mail to Mr. Blais which referenced their discussion of January 7. She mentioned the inappropriate behaviour of her manager Mr. Wade, his inability to resolve matters in a professional manner and his abrupt manner of speech when addressing staff. She went on to refer to his putting down of women in a "degerative" [sic] manner "which is not conducive to any working environment". She specifically alleged that Mr. Wade's conduct towards her constitutes sexual harassment and she asked directly for a transfer from Mr. Wade's branch immediately. She concluded by asking for a one-to-one meeting at which time she would elaborate more on her concerns and detail other activities.

75Mr. Blais called the applicant upon receipt of the letter and scheduled a meeting with her on January 24. She said that, in this particular time frame, things were horrible at work, that she was stressed out and that the entire situation was having a negative impact on her performance. She specifically alleged that on January 22, there was further touching of her by Mr. Wade in the vicinity of the safe, and on January 23 she was unable to report to work and called in sick.

76The applicant said that she went to the doctor's office without an appointment in the afternoon of January 23. While waiting to see the doctor, she called Mr. Wade to advise him that she would not be reporting for work that day. The conversation became heated and the applicant's voice was elevated to the extent that [at] one point, the doctor came out of his office and asked her what was going on. The applicant said that, during this conversation, Mr. Wade said to her "any bush doctor can give you a note". The applicant also gave evidence that, once she was off the phone with Mr. Wade, she called Ms. O'Neil and told her that she couldn't take it anymore, that Mr. Wade was a pig, and that she couldn't deal with it. She said that she was crying during this conversation. According to the applicant, Ms. O'Neil told her to work it out with Mr. Wade and hung up on her. She said that she wasn't able to work it out with Mr. Wade because her perception was that it was "his way or the highway".

77The applicant gave evidence of the stress that she was under in this time frame, during which she was, with difficulty, attending at work. She said that she was experiencing panic attacks, going to the bathroom to vomit, experiencing anxiety, chest pains, lots of headaches, and sleeplessness including chills and cold sweats. She had not told her son, who was approximately 19 years of age at this time, about the harassment, but one night she woke up screaming as she dreamt that Mr. Wade's hands were on her neck. After that incident, she had to tell her son what was going on. She said that she didn't want to go on medication but that she was consuming eight to ten Advil per day. She was taking shifts at branches other than Mr. Wade's branch because she wasn't getting many hours there.

78On January 24, she attended at the Yonge and Eglinton branch for her meeting with Mr. Blais. When she arrived, she found that Ms. O'Neil was also going to be part of the meeting, which upset her because she had wanted a one-to-one meeting with Mr. Blais. She said that she told Mr. Blais and Ms. O'Neil everything that she had related in this hearing, including Mr. Wade's arguments with Liana and his unfair scheduling of the staff. She said that, during the course of this meeting, Ms. O'Neil asked her things like "are you sure this is sexual harassment" and "what do you think constitutes sexual harassment". She said that, based on Ms. O'Neil's facial expressions, she perceived that Ms. O'Neil didn't believe her story. She went on to say that Ms. O'Neil seemed to have a different agenda, and at one point, asked Mr. Blais to leave the room. Once he had left, Ms. O'Neil "gave it to her" and demanded to know why the applicant had not come to her as opposed to Human Resources; she said that she could have "nipped it in the bud" if she had come to her first. The applicant said that she told Ms. O'Neil that she couldn't talk to her. Mr. Blais returned to the meeting at which time the applicant asked for a transfer from Mr. Wade's branch. Mr. Blais said that it was not up to him and that Ms. O'Neil would have to decide. The applicant also asked for "EAP" meaning access to the company's employee assistance program. Mr. Blais agreed to provide to her the phone number. The applicant emphasized that it was she who asked for the transfer and the access to EAP, and that it was not offered by the company representatives. Towards the end of the meeting, Mr. Blais said that he was going to look into the applicant's harassment complaint. The applicant suggested that Mr. Blais speak to Mr. Yu, Ms. Pike, and Courtney and Jessica who had worked with the applicant at Mr. Wade's branch. There was also discussion about where the applicant would go to work next, and she said that Ms. O'Neil wanted her to go back to Mr. Wade's branch pending her decision on a transfer from that branch. Mr. Blais, however, apparently said that she did not need to go back to work to that branch, and he assured her that she would be paid for the day. The applicant said that, at the end of the meeting, there was no plan as to where she would be going to work next. Ms. O'Neil agreed to transfer her to another branch within a few days of the January 24th meeting, and she never worked with Mr. Wade again.

79The applicant obtained the phone number for the company's EAP program and saw a therapist approximately five times in order to assist her with the psychological impact of the harassment. However, at some point, she ran out of sessions and despite her need for continuing therapy, was unable to afford to continue privately.

80The applicant stated that she never heard back from Mr. Blais with respect to the outcome of his investigation. She was never contacted to provide a written statement beyond her January 21 letter. She said that, some time in February or March, she had a chance meeting with Mr. Blais at the Kennedy and Eglinton branch at which Mr. Blais was apparently meeting Jessica in order to interview her. She met Mr. Blais and said to him that she hadn't heard from him, and that she would like to know what was going on. Mr. Blais said to her "as far as I am concerned, the matter is over and I can't elaborate on anything". She said that she never was advised of the outcome of the investigation beyond that statement from Mr. Blais, and that she received no written correspondence from the company.

81The applicant was asked how she felt after making the harassment complaint. She said in response that she was upset, she felt ashamed and that she was to blame, her self-esteem went way down, she was depressed and anxious, she had a fear for her job as she had gone to Human Resources to obtain help but that that help was not forthcoming. She also said that her impression of Ms. O'Neil's response to the complaint was that she (the applicant) should simply be tolerating Mr. Wade's behaviour towards her.

82On July 10, 2008, the applicant prepared a written statement to the police, as she had been urged to make a complaint to the police by her EAP counsellor. The statement to the police is generally consistent with the applicant's evidence at the hearing, including her description of the "panic button" incident.

83On the basis of all of this evidence, I find that the "panic button incident" occurred substantially as described by the applicant. Her subsequent actions, especially the complaint to the company as documented in the January 21 letter and as described by her at the January 24 meeting, are consistent with that event constituting the "culminating incident" in the pattern of harassment that she was experiencing at the hands of Mr. Wade. Mr. Wade's evidence was unconvincing and is rejected. I will reserve my comments with respect to the company's response to the applicant's harassment complaint until later in this decision.

Performance Issues and Termination

84With respect to the applicant's allegation that her termination from employment on June 30, 2008, was discriminatory and/or constituted an act of reprisal, the company responded that her termination was exclusively based on ongoing performance issues culminating in a serious customer complaint received in the month of June. The company's evidence on these matters was given by Kim Norton, who I found to be a credible witness.

85Ms. Norton was the District Manager for the area in which the applicant worked from April to the applicant's termination in June 2008, having taken over that responsibility from Ms. O'Neil. She stated that although where there is a Branch Manager, that person is responsible for the CSRs that work there, if there is no Branch Manager then it is the District Manager who is responsible for the CSRs. For a period of time in the April to June time frame, there was no Branch Manager at the branch where the applicant worked. In particular, she said that she would conduct CSR performance reviews if there was no manager at the branch where the CSR worked. Also, she would be responsible for discipline and termination decisions in the absence of a Branch Manager.

86When Ms. Norton was being introduced to the branches for which she would become responsible by Ms. O'Neil, Ms. O'Neil did not highlight anything in particular about the applicant, including the fact that she had filed a sexual harassment claim against Mr. Wade with the company. She said that Ms. O'Neil offered to do the applicant's performance review because she (Ms. O'Neil) had been most involved with the applicant over the course of the review period, which was the applicant's first year of employment.

87That performance review took place on May 15, 2008, and both Ms. O'Neil and Ms. Norton were present at the meeting with the applicant. Ms. Norton did not see the documents to be presented to the applicant until a brief meeting with Ms. O'Neil at a coffee shop just before they met with the applicant, and she had no input into their content. The documents presented to the applicant were a six-month "CSR performance review" document dated October 2, 2007, completed by Mr. Wade and a "CSR performance review" document dated April 2, 2008, prepared by Ms. O'Neil. For reasons that Ms. Norton could not explain, the October 2007 document had not been previously presented to the applicant by Mr. Wade or anyone else. There was a conflict in the evidence between Ms. Norton and the applicant as to whether the comments sections of the April 2008 document were read to the applicant in the meeting; however, the applicant did not dispute receiving both reviews at the meeting.

88The CSR performance review document contains an evaluation of the employee on the grounds of customer service, security, cash handling, risk assessment, salesmanship, collections and work quality/teamwork. The customer service portion constitutes 20 percent of the overall rating, on the October 2007 document, the applicant received a score of 1.0 in that area, which is below the required 2.0 standard. The applicant's overall rating was 2.05, which is only slightly better than the minimum 2.0 required. The comments on the review from both Mr. Wade and the District Manager (Ms. O'Neil) emphasized that, while the applicant had certain strong points, she needed to focus on improving in certain areas including customer service. On the April 2008 review, once again the applicant's customer service score was 1.0, and her overall rating was 1.7. In the comments section at the end of the review, Ms. O'Neil noted that the applicant's performance did not qualify her for a wage increase, and that she needed to increase her results in customer service, cash handling as well as sales. The comments section also contained the following statement: "In January 2008, Patrice-Gerard, HR Manager, and your DM met with you to discuss a confidential issue with your manager, which we resolved, and granted you a transfer to another branch at your request. I hope that you feel more comfortable at 860 since your transfer in February 2008, and that you approach your new DM, Kim Norton, directly with any issues you have in the future".

89On or about June 2, the applicant was provided a "progressive discipline record" by Ms. Norton arising out of two incidents that occurred in late May related to the applicant not keeping the outer door of the safe in the branch locked, and another incident which involved a discrepancy in the applicant's till because of the purchase of a mop from Zellers. Although the applicant disputed the validity of the discipline based on these two incidents, she did not dispute that they occurred. At the end of the progressive discipline record, Ms. Norton indicated that she had prepared a performance improvement plan to cover a six-month period, and that she would be discussing that document with the applicant. The document also stated "Further breaches of policy and procedures or customer service scores that are below company standards of 90% will result in further disciplinary action, up to and including termination of employment".

90On or about June 10, the applicant was provided a performance improvement plan by Ms. Norton. The letter referenced the discussions that had occurred recently between her, Ms. O'Neil and the applicant, and highlighted the need for the applicant to improve her customer service standards. The company's expectations for the applicant's work as a CSR were laid out specifically and included the area of customer service, in which she was required to demonstrate high standards and to communicate the importance of customer satisfaction, as well as ensuring that she was committed and consistent in attaining expected customer service standards of 90 percent at all times. The document went on to describe how the applicant's performance would be reviewed and concluded with the following: "Although I anticipate much improvement, please note that should you fail to meet the goals outlined at any point during the scope of this PIP, it may result in the termination of your employment with National Money Mart".

91On June 22, the company received an e-mail from a customer who stated that he had had "a disturbing experience" while attempting to wire funds at one of the company's locations. The customer's e-mail, which was entered into evidence, described his encounter with the applicant, her unfriendly approach to him, her erroneous entry of information relating to his transaction, her disrespectful attitude, and his need to return to the branch because of an error made by the applicant. The customer stated that "This was absolutely one of the worst experiences I have ever had in conducting business", and that "I am unable to properly communicate the attitude the person was projecting. On top of the attitude, the incompetence was a complete waste of my time and the person receiving the money". The customer went on to indicate that he would never return to that company's location, and he concluded by saying that "This is absolutely and completely unacceptable and insulting".

92The customer e-mail was forwarded to Ms. Norton, who determined that the customer's complaint related to the applicant. Ms. Norton contacted the customer by telephone to follow up with him. She indicated in her evidence that his e-mail did not do justice to his complaint, that he was articulate and not angry or belligerent, but rather was upset and genuinely felt that he had been treated badly. Following her contact with the customer, Ms. Norton contacted Mr. Blais in order to receive guidance from him regarding the termination process as she had decided that matters had come to a head and that, despite the applicant having shown some evidence of improvement since the May 15 meeting, the customer complaint was sufficiently serious that termination was the appropriate response. Ms. Norton said that, in her discussions with Mr. Blais, the applicant's sexual harassment complaint did not come up. In fact, she said that the only reason that she was aware of the applicant's sexual harassment complaint was as a result of a discussion with the applicant herself. Although neither the applicant nor Ms. Norton went into the detail of this discussion, it appears that the applicant did not raise a serious issue with Ms. Norton about the inadequacy of the company's response to her complaint, and neither did she take the position that in fact it had not been resolved.

93Ms. Norton said that she was the one who decided to terminate the applicant's employment. She said that she did not have any discussion with Ms. O'Neil about that termination as she did not feel it was necessary. She said that the reasons for her decision to terminate were exclusively based on the ongoing customer service problems which the applicant had demonstrated from the commencement of her employment, culminating in the June 22 customer complaint. She acknowledged in cross-examination that there was some evidence that the applicant's customer service was improving after the imposition of the performance improvement plan (from the person who was responsible for the branch where the applicant was working); however, she felt that the customer complaint overwhelmed that.

94Ms. Norton and Mr. Blais met with the applicant on June 30, at which time she was advised that her employment was terminated. A letter bearing that date was produced although the applicant indicated that she did not receive it on June 30 or at any time prior to its production in this human rights proceeding. The letter mentions the applicant's failure to maintain the company standards regarding customer service. There was a dispute in the evidence between Ms. Norton and the applicant as to whether or not the customer complaint was shown to the applicant at the termination meeting and as to whether the applicant had a genuine opportunity to respond to it. In any event, Ms. Norton indicated that she had made up her mind to proceed with the termination. In response to a question from the Vice-chair as to what Ms. Norton would have done if the applicant had raised the sexual harassment complaint at the termination meeting, she indicated that she did not know what she would have said.

95The applicant disputed that her performance was as bad as described by Ms. Norton, especially with respect to the customer service area, and suggested that there had in fact been an element of discrimination/reprisal in the company's termination of her employment. She pointed out that her customer service was improving (e.g., her Mastercard sales were up) and that this was not taken into account by the company. However, she did not dispute that there was an incident involving the customer who complained, that the meeting of May 15th occurred more or less as described by Ms. Norton (except as noted above), nor did she dispute that she received the documents referred to above on or about their dates (other than the termination letter).

Effect of the Harassment on the Applicant

96The applicant gave evidence as to the effect of the harassment on her for the six-month period following her termination. She said that she was "distracted", terrified, stressed, that her anxiety symptoms had increased, and that it was necessary for her to take "time out" to sort out where to go next. She emphasized that she had been greatly affected by the events, and that it was necessary for her to return home to Jamaica for a period of five weeks in early 2009 in order to visit with family. She said she was only able to secure part-time employment at Sobey's in June 2009, at a lesser wage than she was receiving from the company.

97The applicant was also asked how she was feeling now, meaning at the time of the hearing. She said that she was still not good, that she was distrustful of men, that the events had affected her personal life, and that she still needed therapy but was not able to afford it. She stated that she has headaches and numbness in her hands and as well experiences cold sweats. She said that the events had had a deep impact on her, partially because the company had not handled her harassment complaint properly. She disagreed with the statement on the April 2008 performance review that her complaint had been "resolved". When she was asked why she felt that she had been terminated, she referred to Mr. Alverzo's statement to her that Ms. O'Neil was going to get rid of her, that the company had ignored her positive performance at the end of her employment and she stated clearly that she felt she had been terminated because she had made the sexual harassment complaint.

ANALYSIS AND DECISION

98The issues set out the beginning of at this decision will be addressed individually in this section of this decision.

Sexual Harassment

99The elements required to be proven by an applicant in a sexual harassment case have been recently summarized in Smith v. Menzies Chrysler Inc. (No. 2), 2009 HRTO 1936 [reported 68 C.H.R.R. D/374], where the Tribunal stated as follows [at § 154]:

In order to constitute sexual harassment, the evidentiary burden on the complainant is to demonstrate that the impugned behaviour was (i) a course of vexatious conduct or comment, (ii) by an employer or employer's agent, (iii) unwelcome or ought to be known to be unwelcome and (iv) related to sex or gender: see Canada (Human Rights Commission) v. Canada (Armed Forces), 1999 CanLII 7907 (FC), [1999] 3 F.C. 653 [1999 CanLII 18902 (FC), 34 C.H.R.R. D/140].

The Tribunal also noted the following with respect to the issues involved in sexual harassment cases [at § 150]:

The Code provides that all persons have a right to be free of discrimination (section 5(1)) and harassment in the workplace (section 7(2)) "because of sex". There can be no doubt that the reference to "because of sex" captures the concepts of gender, sexuality and sexual categories, as well as sexual characteristics and, therefore, includes sexually-related discrimination and harassment. The focus of a sexual harassment inquiry is not strictly on the gender or sexual orientation of the parties. It is a multi-faceted assessment that looks at the balance of power between the parties, the nature, severity and frequency of impugned conduct, and the impact of the conduct. The key indicia (and harm) of sexual harassment is the use of sex and sexuality to leverage power to control, intimidate or embarrass the victim.

100In this case, the company has, against the background of the general law, published a discrimination/harassment policy which sets out the company standard and set of expectations for the behaviour of the company's employees. The policy defines "harassment" as follows: "means any unwelcome, vexatious comment or conduct, or words or actions that disparage or cause humiliation, offence or embarrassment to another person". The policy provides the following examples of inappropriate behaviour that constitute a form of sexual harassment:

· unwelcome sexual flirtation, advances, propositions or gestures

· verbal harassment such as sexist jokes and innuendos causing embarrassment or offence, told or carried out after the joker has been advised that they are embarrassing or offensive, or that they are, by their nature, clearly embarrassing or offensive

· leering

· derogatory or degrading remarks directed towards a person because of their sex or sexual orientation

· sexually degrading words to describe a person

· requests for sexual favours, especially when an employment decision is based on submission to or rejection of such deviant conduct

· graphic, verbal comments about an individual's physical characteristics or clothing

· inappropriate display of sexual pictures or materials that are considered offensive

· intentional, unwanted physical contact

· sexual assault (an offence under the Criminal Code)

· verbal abuse, reprisal or threat of reprisal for rejection of a sexual solicitation or advance

101In Streeter v. HR Technologies Inc. (No. 3), 2009 HRTO 841 [CHRR Doc. 09-1214], at § 33, the Tribunal interpreted the term "vexatious" and stated that such term imported a subjective element into the definition of harassment. It was held that the comment or conduct must be annoying, distressing or agitating to the person complaining, and it was noted that conduct has been found to be vexatious where the complainant finds the comments and conduct worrisome, discomfiting and demeaning.

102There is no doubt in my mind that the above requirements have been met in this case. There was ample evidence from the applicant regarding the adverse effects of Mr. Wade's harassment on her in the terms set out above.

103In terms of whether or not Mr. Wade knew that his comments and conduct were unwelcome, I find that he did know that. During the course of his training in April 2007, he was approached by Iliana about the fact that his staring was bothering her and others. The applicant made the odd comment to Mr. Wade (in the form of her exclamation "Desmond!") after she observed him staring at another female employee and after he "bounced" into her. As well, she would regularly move away from him when he came into contact with her and would display facial expressions that indicated her discomfort with the contact that he was making with her. Furthermore, other female employees who gave evidence at the hearing related the various ways in which they communicated to Mr. Wade that his staring at, and contacting of, them was making them uncomfortable and that they did not wish him to continue.

104In any event, I find that Mr. Wade "ought to have known" that his comments and conduct were unwelcome. By any objective standard, his conduct towards the female employees was sexualized and was not in line with what one would expect of a Branch Manager who was in charge of a largely female staff group. There was no suggestion in the evidence from any witness, including Mr. Wade, that the female employees in any way invited or welcomed Mr. Wade's sexualized conduct towards them. Despite the fact that the applicant and perhaps other female employees acquiesced to some degree in relation to Mr. Wade's conduct, I find that Mr. Wade ought to have known that his continued sexualized and inappropriate comments and conduct were unwelcome in the workplace.

105I further find that the "panic button incident" constituted a sexual solicitation of or, at minimum, an advance towards the applicant within the meaning of s. 7(3)(a) of the Code. That type of physical contact with an employee in the form of a massage of the neck and the removal and replacement of the panic button over the applicant's head was, at the very least, a sexually suggestive act that cannot be interpreted in any other reasonable way.

106The respondents argued that, because the applicant made little or no objection to Mr. Wade's harassing comments and conduct (which of course was not conceded by the respondents), I should not make any finding of sexual harassment under the relevant provisions of the Code. I reject this argument both on the basis of the evidence in this case and the general law which is that the employer bears an obligation to ensure a harassment-free workplace exists, regardless of whether employees tolerate it.

107In terms of the evidence, given that Mr. Wade's comments and conduct were regular and continuous in relation to the applicant and the other female employees for which he was responsible, I find that there was sufficient evidence of objection by the applicant (as well as other female employees). As the applicant's counsel pointed out in argument, females respond differently to sexual harassment in the workplace; some are prepared to take a definite stand and tell the harasser to stop immediately, whereas others are more muted in their response and for a variety of reasons either say nothing or say very little. The applicant is clearly in the latter group and I accept her evidence that she was concerned about standing up to Mr. Wade because of her concerns about the security of her job (given the fact that he was her supervisor) which she needed in order to provide for herself and her son. It must be borne in mind that sexual harassment is usually more about abuse of power and control than actual sexuality, and I find that the applicant was very vulnerable to Mr. Wade's authority and his ability to influence her job with the company. She also found Mr. Wade to be very unapproachable (which was corroborated by Ms. Wright), especially given that she is not prone to seek out confrontation. On the evidence, I find that the applicant did "send a message" to Mr. Wade that she was not happy with his comments and conduct towards her.

108In any event, as observed by the Tribunal in Streeter, supra, protest or objection to the allegedly harassing conduct is not a precondition to a finding of harassment: Howard v. deRuiter, 2004 HRTO 8 [CHRR Doc. 04-165]. It was also noted at § 35 of the Streeter decision that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to a supervisor's behaviour, an employee may go along with unwelcome conduct: see Simpson v. Consumers' Association of Canada (2001), 2001 CanLII 23994 (ON CA), 57 O.R. (3d) 351 (C.A.); leave to appeal refused [2002] S.C.C.A. No. 83 (QL).

109For these reasons, I find that Mr. Wade breached ss. 5(2), 7(2) and (3)(a) of the Code and the company policy. The breach of the company's policy is relevant in this case, in that the policy reflects the provisions of the above-noted sections of the Code and also contains specific examples as to exactly what constitutes sexual harassment. In my view, Mr. Wade breached a good number of the items contained in the "bullet points" examples set out in the policy itself, despite the fact that his evidence was that he reviewed this policy during the course of his training in April 2007.

Poisoned Work Environment

110The applicant also based her case on ss. 5(1) and 7(2) of the Code and the prohibition, by way of the jurisprudence, against a "poisoned work environment". As stated in the Smith case, supra [at § 151]:

The purpose of s. 7(2) of the Code is to protect employees from sex harassment and this includes inappropriate sexualization of the workplace. Human rights jurisprudence has long accepted that the "emotional and psychological circumstances in the workplace" which underlie the work atmosphere constitute part of the terms and conditions of employment: see Dhillon v. F.W. Woolworth Co. (1982), 1982 CanLII 4884 (ON HRT), 3 C.H.R.R. D/743 (Ont. Bd.Inq.) at § 6691 and Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.) ("Moffatt"). It is well-settled law that the prohibition against discrimination in s. 5(1) affords employees the right to be free from a poisoned work environment in relation to Code-protected grounds. If sexually charged comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to both ss. 5(1) and 7(2) of the Code: see Cugliari v. Telefficiency Corporation, 2006 HRTO 7 [reported 56 C.H.R.R. D/27] and Moffatt, supra.

111The respondents argued that, to the extent Mr. Wade engaged in any staring, such staring was not sexualized and had been misconstrued/exaggerated by the applicant and her witnesses. It was further argued that many of the comments alleged to have been made by Mr. Wade were in relation to other employees such as Courtney and Jessica, who were not called as witnesses. The respondents also relied on a Nova Scotia Board of Inquiry case, Cameron v. Giorgio & Lim Restaurant (1993), 1993 CanLII 16493 (NS HRC), 21 C.H.R.R. D/79, for the proposition that, in order to constitute a poisoned work environment, the comments and conduct must be "pervasive". It was suggested that the evidence simply did not rise to the standard required by the jurisprudence to establish a poisoned work environment.

112I find that Mr. Wade's comments and conduct created a poisoned work environment for the applicant and most of the female employees with whom he worked. There were numerous references in the evidence to the derogatory, insulting and crude comments made by Mr. Wade in relation to his female employees and female customers. His continuous staring and leering at female employees and customers was noticed by all of the applicant's witnesses and was apparently the subject matter of at least one customer complaint against Mr. Wade. His inappropriate and unprofessional contact with the applicant and other female employees was unnecessary and uncalled for, especially in his position as their supervisor. Ms. Pike's evidence about the joint interview conducted by Mr. Wade and her is yet another example of the way in which Mr. Wade imported a sexualized atmosphere into the workplace. Taking all of the above into account, Mr. Wade's comments and conduct created an uncomfortable, unwelcome, unprofessional, sexualized atmosphere in the branch of which he was manager, which adversely affected the applicant and the other female employees working there.

113This working environment unfortunately became the norm for the applicant as a result of which she was, at minimum, uncomfortable on virtually a daily basis and, as time went on, she became extremely anxious and stressed with physical symptoms such as panic attacks and vomiting.

Investigation

114The applicant also argued that the respondents had liability under the principles which have developed in human rights decisions regarding the employer's obligation, that once aware of the possibility of harassment occurring in the workplace, to undertake a prompt, serious and thorough investigation which, in the appropriate case, will lead to consequences for the harasser.

115Both counsel made reference to Laskowska v. Marineland of Canada, 2005 HRTO 30 [reported 53 C.H.R.R. D/262] ("Marineland"), which is one of the leading decisions regarding the employer's obligation to investigate an allegation of sexual harassment. In that case, the Tribunal set out the relevant criteria at § 59 and 60 of the decision:

The six criteria of corporate "reasonableness" in Wall [1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44] have been adopted in previous decisions of the Board of Inquiry. I adopt a conflated version of them. The criteria are:

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

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.

116The company's policy contained portions related to the obligations of the company to investigate harassment complaints, as follows:

If you feel uncomfortable discussing harassment with your supervisor(s), please call the 1-877 Employee Hotline number. The company cannot resolve matters that are not brought to its attention. An employee regardless of position, who has a complaint or witnesses harassment at work by anyone including, management and customers has a responsibility to immediately bring the matter to the company's attention. The company will fully investigate.

The following steps (similar to the Dispute Mechanism guidelines above) should be taken:

1. The individual that has been offended has the right to address the situation and try to resolve it in a calm and professional manner. Let the offender know that you are uncomfortable and want the offensive behaviour to stop.

2. If this does not correct the situation, the individual that has been offended should file a written complaint (marked strictly confidential) with their supervisor and a copy to the District Manager requesting a remedy with a copy to the Market Manager. This will initiate a formal investigation into the matter

3. If the complaint is not resolved at this stage, a copy of the documentation must be sent to the Manager Human Resources Canadian Retail Operations and Vice President of Field Operations.

4. For complaints concerning a Market Trainer, District Manager or Market Manager, if the process listed in item 1 above does not correct the situation, you must write to the Manager Human Resources Canadian Retail Operations and Vice President of Field Operations.

Based on the outcome of the investigation, it will be determined if there has been a breach of company policy on harassment, and the appropriate action will be taken in the event that harassment is determined to have occurred.

117In this case, the issue of whether or not the company's investigation was reasonable must be examined both in relation to the time frame leading up to the applicant's harassment complaint in January 2008 as well as thereafter.

118With respect to the first time frame, the evidence discloses that the responsible District Manager, Ms. O'Neil, was contacted as early as April 2007 regarding complaints as to Mr. Wade's comments and conduct. Thereafter, in the time frame up to the applicant's January 2008 complaint, various people, including the applicant, Ms. Smith, IIiana and Ms. Wright (and possibly others, although I have no direct evidence from a number of the people who were advised by Mr. Yu and Ms. Pike to contact Ms. O'Neil) contacted Ms. O'Neil to complain about Mr. Wade's leering, staring, comments and other inappropriate behaviours. Ms. O'Neil's typical response was to tell the person making the complaint to deal with it themselves by going back to Mr. Wade and tell him that he should stop. While at one level this advice is reasonable and consistent with the provisions of the company's policy (see item 1 quoted above), the number of times that Ms. O'Neil was contacted with complaints about Mr. Wade should have prompted a response on her part to investigate the matter further, especially since the complaints were coming from a number of different people as opposed to a single source. Moreover, as the alleged harasser was the supervisor of the people making the complaints, Ms. O'Neil should have recognized that it would be difficult for them to confront Mr. Wade.

119Ms. O'Neil was not called as a witness by the respondents, nor were any company documents entered into evidence related to the company's investigation of these complaints. Accordingly, I am left with the evidence of the applicant and her witnesses about the lack of response that they received from Ms. O'Neil in response to their complaints about Mr. Wade. Significantly, Mr. Wade said that he was never contacted by Ms. O'Neil with respect to any such complaints about him.

120I find that the company completely failed to investigate the various complaints that were received by Ms. O'Neil prior to the applicant's January 2008 complaint. In the circumstances, despite the absence of a formal written complaint, the company had an obligation to investigate the allegations which were being brought forward, consistent with its obligation to maintain a harassment-free workplace under s. 5 of the Code.

121With respect to the applicant's complaint itself, the company had in its possession by no later than the January 24, 2008, meeting all of the facts from the applicant that it needed to proceed with an investigation, as well as the names of witnesses that had been provided by the applicant. What was the company's response? I find that, at the meeting, Ms. O'Neil proceeded to attack the applicant about the validity of her complaint and whether she understood what sexual harassment was, despite the fact that she (Ms. O'Neil) was the company representative who knew of the complaints that she had received in the previous months from other female employees about Mr. Wade. Such a response demonstrates a complete lack of understanding on the part of Ms. O'Neil 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.

122Mr. Blais, who was the corporate Human Resources Manager who apparently took charge of the investigation of the applicant's complaint, did not follow through with a prompt, thorough and professional investigation of that complaint. He failed to contact all of the witnesses provided to him by the applicant (the applicant believes that he contacted only Jessica and Courtney; he did not contact Mr. Yu or Ms. Pike), he never put the applicant's allegations to Mr. Wade in order to obtain his response and, at least based on the evidence tendered by the respondents at this hearing, he did not keep appropriate records related to his investigation. Neither did he get back to the applicant within a reasonable time frame to advise her of the status and outcome of his investigation. It was only as a result of a chance encounter between the applicant and Mr. Blais that she became aware of the fact that the company considered the matter to be closed. Taking the evidence together, it appears that Mr. Blais reached a conclusion regarding the validity of the applicant's complaint without obtaining Mr. Wade's response to the allegations and without speaking to all the witnesses. The failure to put the allegations to Mr. Wade is in and of itself inappropriate, given that the response of the alleged harasser is clearly relevant to the determination of the validity of the complaint. He also appears to have ignored at least one of Ms. Pike's e-mails which raised issues about the applicant and Mr. Wade, although the exact timing of that e-mail in relation to the making and investigation of the complaint by the applicant is unclear. Mr. Blais was not called as a witness by the respondents, nor were any notes, e-mails, reports or other documents pertaining to his investigation of the applicant's complaint produced as evidence.

123As argued by the respondents, I accept that the standard for an employer's investigation of a harassment complaint is not that of perfection. The respondents also argued that the company's transfer of the applicant from Mr. Wade's branch immediately after the January 24, 2008, meeting, and the provision of EAP to the applicant, satisfied its legal obligations in the circumstances. However, I find that the company's investigation of the applicant's complaint did not satisfy the second and third requirements of the Marineland test, in that the company did not take the complaint seriously, did not deal with the complaint promptly, did not take care of its employee, did not demonstrate the appropriate sensitivity to the concerns of the applicant (for example, it was she who had to ask for the transfer and the access to EAP) and generally did not conduct a reasonable investigation. Furthermore, the company did not communicate the status and outcome of the investigation to the applicant. The only consequence for Mr. Wade was a "coaching" session, which was, in all the circumstances, inadequate and unreasonable.

124The company's lack of concern for complaints of this nature is punctuated by the fact that Ms. Pike made a complaint about Mr. Wade and other matters to the 1-877 Employee Hotline number in August 2008, on the day that she was terminated. Ms. Pike was never contacted as a result of that complaint.

125For these reasons, I find that the company breached ss. 5(1) and 7(2) of the Code by failing to properly investigate complaints from a number of employees about Mr. Wade's comments and conduct, and by failing to investigate reasonably the applicant's January 2008 complaint.

Termination as Reprisal

126The applicant alleged that her termination from her employment on June 30, 2008, represented an act of reprisal based on the fact that she had made a prior sexual harassment complaint against her manager. The respondents' position was that her termination was based only on considerations of her poor performance and nothing else.

127The protection against reprisal in the Code, which is found in s. 8, has been interpreted as requiring proof of intent on the part of the alleged repriser. In Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (QL) [CHRR Doc. 02-177] (Div.Ct.), it was held that the intent to reprise may be inferred from the facts and is a matter of credibility.

128In this case, there is evidence that the applicant's performance, particularly with respect to her customer service, was below standard right from the beginning of her employment. The company verbally brought its concerns to the attention of the applicant (the applicant agreed that she had been spoken to about these issues prior to the May 15, 2008, meeting with Ms. Norton and Ms. O'Neil) and documented its concerns by way of the October 2007 and April 2008 performance appraisals, both of which were delivered to the applicant on May 15, 2008. It is obviously unfortunate that the October 2007 performance appraisal was not delivered to the applicant in "real-time"; however. I accept Mr. Wade's evidence that he prepared the appraisal in October 2007 and provided it to his District Manager (Ms. O'Neil) at that time. Within the few weeks following the May 15 meeting, the applicant received discipline and a performance improvement plan, which again emphasized the necessity for her to perform to company standards in the area of customer service, failing which the employment relationship might come to an end.

129I accept that the customer complaint received by the company in late May was the "straw that broke the camel's back" in terms of the company losing patience with the applicant's ability to provide satisfactory customer service. The customer e-mail was entered into evidence and was very strong in its tone and content, and demonstrated the customer's complete lack of satisfaction with the applicant's treatment of him. That concern was magnified when Ms. Norton spoke to the customer by phone. The same e-mail thread discloses exchanges between Ms. Norton and Mr. Blais about the seriousness of the customer complaint and the action to be taken by the company in response to it, which ultimately led to the applicant's termination on June 30. As indicated above, I found Ms. Norton to be a credible witness and I accept that it was only she who made the decision to terminate the applicant's employment, and that that decision was based exclusively on the applicant's performance issues.

130Ms. Norton was the new District Manager for the area in which the applicant worked in eastern Toronto, and she had no personal involvement in the applicant's sexual harassment complaint filed in January 2008. She only knew of that complaint because of a conversation between her and the applicant. Interestingly, there was no mention of that conversation in the applicant's evidence-in-chief, and it surfaced in the evidence for the first time in cross-examination. The applicant did not place any emphasis on it and after hearing from both the applicant and Ms. Norton, I am not clear on what the discussion was between them pertaining to the applicant's complaint. Accordingly, I am not in a position to find that the applicant advised Ms. Norton that she was discontent as a result of the handling of her complaint by the company, nor am I able to find that she advised Ms. Norton that the complaint was not "resolved" which is what Ms. Norton believed based on her reading of Ms. O'Neil's April 2008 performance appraisal and the discussion with the applicant on May 15, 2008.

131I accept the argument of the respondents that the issue before me is not whether or not there was just cause for the termination of the applicant's employment; rather, the question is whether or not there was an intent on the part of the company to reprise against the applicant. The applicant submitted that the company had "jumped" at the opportunity to terminate the applicant without properly taking into account the improvement in certain areas of the applicant's performance pertaining to customer service following the discipline and performance improvement plan. It was also argued by the applicant that I should find that the customer complaint was not put to the applicant before the decision to terminate was made, which calls into question the real motivation of the company in moving to terminate.

132On the totality of the evidence, I am not able to conclude that there was an intent on the part of Ms. Norton, the corporate decision-maker, to reprise against the applicant because of her sexual harassment complaint. I accept Ms. Norton's evidence that she did not have any contact with Ms. O'Neil about the possible termination, and that her discussions with Mr. Blais were limited to her obtaining advice from him about the process and procedure related to the termination. I reject the applicant's argument that both Ms. O'Neil and Mr. Blais had "influence" in relation to Ms. Norton's decision to terminate as that simply wasn't proven. I observed Ms. Norton in the witness box and found her demeanour to be forthright and candid, and I found her evidence to be consistent and reasonable on its face. In addition, her evidence was corroborated by the company's documents related to the applicant's performance issues. Even the October 2007 performance appraisal which was completed by Mr. Wade was thorough, objective and professional in its content, so to the extent that Ms. Norton relied on that in her thinking in June 2008, there is no reason to believe that Mr. Wade's view of the applicant at the time influenced his appraisal of her.

133The applicant argued that the effect of the harassment that she had experienced in the workplace contributed to her poor performance and that that should affect my view of the company's defence on that ground. However, I have a number of difficulties with that proposition. First, the applicant did not emphasize that issue in her evidence-in-chief, in that her evidence about the relationship between the harassment and her performance level was largely restricted to the day of the "panic button" incident and the few weeks thereafter, up to the January 24, 2008, meeting with Ms. O'Neil and Mr. Blais. Secondly, there was no evidence at the hearing that the issue of the harassment adversely affecting her performance was mentioned by the applicant to the company representatives at the meetings held in May and June 2008 pertaining to her performance, at the June 30, 2008, termination meeting, or at any other time between January and June of 2008. Finally, although there was no obligation on the applicant to do so, the applicant's therapist, who was involved in her counselling for a few months after January 2008 and who might have been able to shed light on this issue, was not called as a witness by the applicant. On this basis, I am not able to find a direct link between the harassment that the applicant experienced and the poor performance that led to her termination in June 2008. Although I acknowledge that in some cases such a link has led the decision-maker to find that the termination of the employment was an act of reprisal, that is an issue to be determined on the basis of the evidence tendered.

134The applicant also argued that, based on the comment allegedly made by Ms. O'Neil to Mr. Alverzo to the effect that the applicant was a troublemaker and that she (Ms. O'Neil) would get rid of her, it should be clear that the company's stated reasons for her termination were not the real ones. I cannot reach this conclusion based on the evidence placed before me, which was hearsay in nature. Mr. Alverzo was not called as a witness by the applicant. Although the Tribunal is able to accept hearsay evidence, there is always a discretion as to the amount of weight to be placed on such evidence, and given the critical nature of this part of the applicant's case, I am not prepared to rely on hearsay evidence in order to make a finding in favour of the applicant on this point.

135For all of these reasons, I find that the applicant has not proven the requisite intent on the part of the company to reprise against her based on her sexual harassment complaint against Mr. Wade.

Remedies

136Having found that both respondents have breached the Code, I turn now to the question of the appropriate remedies in the circumstances. The Tribunal's remedial jurisdiction is based on s. 45.2(1) of the Code, which reads as follows:

45.2(1) 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.

137The applicant seeks $40,000 in damages as compensation for injury to dignity, feelings and self-respect, compensation for lost wages following her termination on June 30, 2008, until her re-employment on June 20, 2009 (which total $16,016), pre-judgment and post-judgment interest on all monetary amounts, and remedies to ensure future compliance with the Code in the form of an improved harassment/discrimination policy as well as human rights training for all employees of the company in Ontario, with a special module for managerial positions regarding sexual harassment and how complaints based on sexual harassment should be handled.

Harassment

138Although the Tribunal is still developing its jurisprudence with respect to remedies, certain recent cases have set out the general principles to be used as a guide by the Tribunal. In Sanford v. Koop, 2005 HRTO 53 [reported 55 C.H.R.R. D/102] the considerations related to compensation by way of general damages were stated to be [at § 35]:

· Humiliation experienced by the complainant

· Hurt feelings experienced by the complainant

· A complainant's loss of self-respect

· A complainant's loss of dignity

· A complainant's loss of self-esteem

· A complainant's loss of confidence

· The experience of victimization

· Vulnerability of the complainant

· The seriousness, frequency and duration of the offensive treatment

139In Smith, supra, the Tribunal referred to the recent Divisional Court judgment of ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 [reported 64 C.H.R.R. D/132] and specifically the Court's commentary about the appropriate factors to be taken into account in the damages assessment exercise [at § 172]:

A human rights damages award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination. The Divisional Court in ADGA Group Consultants Inc. v. Lane, (2008), 91 O.R. (3d) 649, 2008 CanLII 39605 [reported 64 C.H.R.R. D/132] (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 also Ketola, [reported 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20] and Baylis-Flannery v. DeWilde (Tri Community Physiotherapy), 2003 HRTO 28 [reported 48 C.H.R.R. D/197].

140In this case, the applicant suffered humiliation, hurt feelings, and loss of self-respect, a loss of dignity and damage to her self-esteem and confidence. Her respect for Mr. Wade as her supervisor/manager was significantly reduced as a result of his inappropriate and unprofessional conduct. Her ability to concentrate was adversely affected, and after the panic button incident, she had difficulty sleeping, experienced nightmares and went through the humiliating experience of describing what was happening to her to her son. It was necessary for her to take medication while at work, and as matters developed, she actively sought shifts at other company stores in order to avoid contact with Mr. Wade. Her symptoms became physical in the January 2008 time frame, involving vomiting and panic attacks, and requiring medical attention. She was particularly upset by Ms. O'Neil's conduct at the January 24, 2008, meeting where, in an aggressive way, Ms. O'Neil questioned whether or not she was really experiencing sexual harassment. She required counselling which was provided to her by the company for a few months after January 2008, but she was unable to continue with this due to her inability to afford these services.

141She also experienced victimization at the hands of Mr. Wade, which was heightened by her economic and personal vulnerability. She clearly had difficulty coping with the stress and anxiety which flowed from the harassment, which has resulted in a distrust of men generally. She was psychologically unable to address her personal situation after her termination in June 2008, and returned to Jamaica in early 2009 for a five-week period in order to gather herself. She was upset enough about the harassment that she experienced to approach the police in July 2008 with a view to possibly laying criminal charges against Mr. Wade, which she ultimately decided not to do. I should say that I am satisfied that the symptoms and difficulty that I have described above flow from the harassment that the applicant experienced between July 2007 and January 2008, bearing in mind that I have found that her termination from employment in June 2008 was not an act of reprisal. Although such termination would obviously be distressing to the applicant, it is my assessment that the consequences of the harassment described above were in place by the time of the termination on June 30, 2008, and some symptoms continued to the date of the hearing.

142In terms of the seriousness, frequency and duration of the offensive treatment, the evidence is clear that the harassment by Mr. Wade started immediately upon the applicant commencing her work at Mr. Wade's branch in July 2007. It then continued on a frequent and consistent basis, and I find that Mr. Wade was persistent and at times even relentless in his harassing comments and conduct in relation to the applicant (as well as other female employees). What is even worse is that, in my view, Mr. Wade was "on notice" right from the beginning that his conduct was unwelcome. Mr. Wade agreed that Iliana spoke to him in April 2007 about his staring, and I have found that the verbal and non-verbal cues from the applicant (and others) were, or at least should have been, sufficient for him to get the message that his comments and conduct were inappropriate. I have also found that Mr. Wade went out of his way to make physical contact with the applicant, either by way of "bouncing" into her, touching her hand on the computer mouse or while counting money, making contact with her at the wicket or in the safe area. Of course the most serious incident is the panic button incident where Mr. Wade completely invaded the applicant's personal space by rubbing her neck and removing and replacing the panic button over her head.

143The effect of Mr. Wade's harassment was exacerbated by the reality that the applicant was economically vulnerable. She is not a highly educated person and has limited employment opportunities, and she required her income from the company to adequately provide for herself and her son. She was required to endure what was at times serious sexual harassment for a number of months out of fear for her job. In terms of personal vulnerability, the applicant does not appear to be a weak person and did her best to soldier on in a difficult situation until she couldn't take it any more after the Christmas party and panic button incidents. Thereafter, she became highly vulnerable in a personal/psychological sense, both in relation to Mr. Wade's continued harassment of her and the company's poor response to her complaint against Mr. Wade.

Poisoned Work Environment

144The evidence led by the applicant in this area was, in my view, strong and convincing. The applicant and her female witnesses all described in an articulate fashion the sexualized atmosphere in the workplace that Mr. Wade's comments and conduct created. The discomfort and unpleasantness created for the female employees by Mr. Wade's leering, physical contact and derogatory comments towards women was fully laid out in the evidence at the hearing. The result was that going to work for the applicant (and likely the other female employees who worked at Mr. Wade's branch) was something that they didn't look forward to as they knew they would be subjected to an unpleasant, sexualized work environment.

145The evidence of the female witnesses was different in terms of the impact that the poisoned work environment had on them; this is to be expected in that women react differently and on an individual basis in that type of situation. What is clear is that the applicant was seriously adversely affected by the poisoned work environment in which she was forced to work, and she is entitled to be compensated for that.

146The evidence relating to the poisoned work environment needs to be considered against the background of the company's policy which very clearly states that "the company is committed to maintaining a work environment that is free from discrimination. . . harassment, either intentional or unintentional, has no place in the work environment". In the case of Mr. Wade's branch, those conditions clearly did not exist, at least during the applicant's employment there.

Failure to Properly Investigate

147It is clear that the responsible District Manager, Ms. O'Neil, was advised on a number of occasions by a number of different people that Mr. Wade's conduct in the workplace was inappropriate and likely constituted sexual harassment. Despite that, she was either unwilling or unable to initiate an investigation in response to these complaints. The result was that the time frame within which the applicant suffered sexual harassment at the hands of Mr. Wade was elongated beyond what it likely would have been had Ms. O'Neil acted promptly upon receipt of the first or second complaint about Mr. Wade. The law imposes an obligation on employers to promptly investigate sexual harassment for a reason: to minimize the length of time that the victim of the harassment is required to endure the harassment.

148I have also found that the company's investigation in response to the applicant's harassment complaint was inadequate in a number of respects. It also was more prolonged than it needed to be, and the fact that the company failed to keep the applicant apprised of the status of the investigation or its outcome added to her stress.

149I find that an appropriate total for the damages under the three headings above is $30,000. In my opinion, this is an appropriate level of compensation for the applicant, taking into account the three breaches of the Code involved, and allowing for the fact that I have found that her termination from employment was not an act of reprisal. The applicant submitted certain sexual harassment cases in argument which involved higher awards of general damages: see for example H.(S.) v. M. Painting, 2009 HRTO 595 [reported 67 C.H.R.R. D/168] ($40,000), and Smith, supra (total of $50,000). However, these cases involved situations either where the applicants left their employment because of the sexual harassment they were experiencing (or were reprised against) and such leaving was found to be tantamount to dismissal, as a result of which the damages were increased. In this case, I have found the termination of the applicant's employment to not be an act of reprisal.

150I have also reviewed two other recent sexual harassment cases, Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 [CHRR Doc. 09-2403] and Hill-Leclair v. Booth (No. 3), 2009 HRTO 1629 [reported 68 C.H.R.R. D/299], both of which awarded damages for the infringement of the Code in the amount of $25,000. Neither of those cases contained the elements of poisoned work environment and a failure to investigate. In the Hill-Leclair case, the Tribunal observed as follows [at § 47]:

. . . Historically, sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination, see: Domingues v. Fortino, 2007 HRTO 19 [CHRR Doc. 07-398] , Sanford v. Koop, supra; Colvin v. Gillies Hillcrest Variety, 2004 HRTO 3 [reported 49 C.H.R.R. D/204]. This can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated.

151In terms of the liability of the respondents, counsel for the respondents agreed that, in the event that I found that there was liability for Mr. Wade, the company agreed to be responsible for any such liability. I therefore find that the liability for the harassment and poisoned work environment damages awarded, which I assess at $22,500, is joint and several as between the company and Mr. Wade, whereas the liability for the failure to investigate in the amount of $7,500 is that of the company only.

Future Compliance Remedies

152The company's discrimination/harassment policy is reasonably up-to-date (it is dated December 2005) and fairly comprehensive. However, based on the evidence I heard, it is missing certain things which modern discrimination/harassment policies typically contain, including:

· a commitment to investigating any complaints received under the policy promptly, seriously and thoroughly, using either internal or external resources as appropriate;

· a statement that a possible consequence of a finding of discrimination or harassment will be discipline, up to and including termination of employment; and

· a statement that nothing in the policy precludes a complainant from proceeding with a human rights application to the Tribunal.

153I therefore order the company to amend the policy, with the assistance of legal counsel or a consultant having expertise in human rights, so as to update the policy in light of current human rights jurisprudence and principles, including but not necessarily limited to the three amendments listed above.

154The respondents' evidence at the hearing was that all of its new employees are required to review the company's policies, including the discrimination/harassment policy, as part of their orientation. While that is laudable, it is clear that, at least in the case of Mr. Wade, Ms. O'Neil and possibly Mr. Blais, the principles and procedures contained in the policy did not get through to them so as to guide their actions in relation to the applicant, as well as the complaints received by Ms. O'Neil from other female employees other than the applicant. That raises in my mind the need for training.

155I order the company to retain legal counsel or a consultant having expertise in human rights to conduct training of all managerial employees in the province of Ontario, from the level of Branch Manager on up. Such training must take place no later than six months from the date of this decision and is to cover all basic principles of human rights law, with at least one section of the training program to cover sexual harassment under the Code (specifically, what constitutes sexual harassment, the employer's obligation to maintain a harassment-free workplace on an ongoing basis, the company's complaint mechanism, the principles of a good investigation, and possible outcomes from a harassment complaint). A copy of this decision is to be provided to the legal counsel or consultant prior to the conduct of the training. Counsel for the respondent is to confirm in writing to counsel for the applicant that such training has taken place, within six months plus 10 days from the date of this decision.

ORDER

156In conclusion, the Tribunal orders that:

(a) Within 30 days of the date of this decision, the company and Mr. Wade are jointly and severally liable to pay $22,500 for violation of the applicant's inherent right to be free from discrimination and harassment;

(b) Within 30 days of the date of this decision, the company shall pay $7,500 for violation of the applicant's inherent right to be free from discrimination and harassment;

(c) The respondents shall pay the applicant pre-judgment interest from the date of the application to the date of this decision in accordance with s. 128 of the Courts of Justice Act [R.S.O. 1990, c. C.43];

(d) The respondents shall pay the applicant post-judgment interest in accordance with s. 129 of the Courts of Justice Act from the date that is 30 days from the date of this decision;

(e) The company is required to amend and distribute to all employees of the company in Ontario its discrimination/harassment policy within three months of the date of this decision. Counsel for the respondent company is required to send a copy of the amended policy and confirmation of its distribution to all Ontario employees to counsel for the applicant by no later than three months plus 10 days from the date of this decision.

(f) The company is required to conduct training of its managerial personnel within the province of Ontario within the time frames and as set out in § 155 of this decision, and is also required to provide confirmation of such training to the counsel for the applicant as set out in the same paragraph.