HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samantha Payette
Applicant
-and-
Alarm Guard Security Service Inc. and Omari Parsons
Respondents
DECISION
Adjudicator: Jim Dimovski
Indexed as: Payette v. Alarm Guard Security Service
AppearanceS BY
Samantha Payette, Applicant ) On her own behalf
Alarm Guard Security Services Inc., ) Paul Nesseth,
Respondent ) Counsel
1This Application was filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on February 13, 2007, and abandoned upon filing this Application with the Tribunal.
2This Application involves allegations of harassment on the basis of sex and sexual solicitation in the context of employment. Shortly after she was hired as a commission based salesperson, the applicant alleges that the personal respondent, her manager, consistently made inappropriate comments to her based on her sex and engaged in sexual solicitation toward her in the course of her employment. She alleges that after the personal respondent refused to stop, she sought redress from the corporate respondent to no avail. As a result, she states she was forced to resign.
3Among other things, in its response filed with the Tribunal, the corporate respondent, with reference to the applicant, declared: “[w]e do not know who she is”. Mr. Mike Chaudhary, the President of Alarm Guard Security Service Inc. (the “corporate respondent”) wrote that since the corporate respondent had an “Anti Sexual Harassment Policy posted in all our offices” that it was “unlikely” that the personal respondent would have ignored it in the manner alleged by the applicant. The corporate respondent wrote that its policy is “repeated on a daily basis” since its business depends on “getting new Sub-Contractors everyday”. Further, Mr. Chaudhary wrote that he did not believe the personal respondent breached the policy since he did not believe him to be “ignorant and stupid”.
4On June 11, 2010, this matter was scheduled to be heard in Windsor. The applicant and the corporate respondent appeared.
5The personal respondent did not appear although served with the Application. The Tribunal confirmed receipt of a Statement of Delivery (Form C), in a letter dated October 28, 2009, that the Application had been delivered to Mr. Parsons. Mr. Parsons has not responded to either the Application or Tribunal correspondence.
6The Tribunal has provided notice to Mr. Parsons of the possible consequences stemming from his lack of participation in this process. In a letter dated December 15, 2009, the Tribunal indicated, in accordance with Rule 3.2 of the Tribunal’s Rules of Procedures for Transitional Applications under Sections 53(3) and (5) of the Human Rights Code (the Rules), that it may: (a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint, (b) proceed to deal with the Application without further notice to the Respondent, (c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; and, (d) decide the matter based only on the material before the Tribunal.
7For its part, the corporate respondent appeared with legal representation who had been retained days earlier. At the outset of the hearing in Windsor, the corporate respondent’s counsel requested an adjournment. The corporate respondent also intended to call a witness, Ms. G. D’Alimonte, in order to speak to its human rights policy.
THE ADJOURNMENT REQUEST
8At the time this matter was heard, the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments clearly stated that requests for adjournments would only be granted in extraordinary circumstances, such as the illness of a party, witness or representative. The current Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments is similar, noting last minute requests, barring exceptional circumstances such as illness of a party, witness, or representative, will not be granted. The Information Bulletin (now Practice Direction) states that requests for adjournments, particularly at the last minute, are significant impediments to fair and timely access to justice.
9Further, the rational for the Tribunal’s approach to Adjournments of Hearings was succinctly set out in Vallentyne v. Royal Canada Legion, 2009 HRTO 660 at para. 4:
The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with those broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.
10Despite filing its Tribunal response dated August 7, 2009, the corporate respondent did not seek representation until days before the scheduled hearing. Other than time to prepare its evidence, including further witness statements, the corporate respondent did not outline any exceptional circumstances upon which to grant an adjournment.
11Even if the adjournment request was made in order to attempt to ensure the appearance of the personal respondent, I would have denied the request which was made on the day of the hearing.
12The Tribunal provided the corporate respondent ample notice regarding the proceedings, its responsibility within these proceedings and the Tribunal’s broad authority in determining its process. In Tribunal correspondence dated December 15, 2009, the corporate respondent was advised that the applicant’s allegations, among other things in accordance with Rule 3.2, could be deemed true if the personal respondent did not appear. Further, the corporate respondent did not respond to the Tribunal’s letter or provide will-say statements or evidence in accordance with the January 2010 deadline set by the Tribunal. This despite the fact that the Tribunal had cancelled an earlier hearing scheduled for March 2010. In my view, the corporate respondent was well aware of the consequences its lack of diligence in this matter could have at a hearing. I am not satisfied that the lack of diligence on the part of the corporate respondent to obtain counsel in a timely manner to allow time for preparation supported an adjournment; nor were there any exceptional circumstances supporting an adjournment.
13Moreover, the applicant consented to allowing the proposed testimony of the corporate respondent’s witnesses and allowing the corporate respondent to cross-examine her on her allegations.
14Accordingly, I denied the adjournment. As such, with the personal respondent’s absence, the matter proceeded based on the material before the Tribunal, and the testimony from the applicant, Mr. Chaudhary and Ms. D’Alimonte.
BACKGROUND
15In December 2006, the corporate respondent, a company based in Toronto, hired the applicant as a door-to-door commission based salesperson of alarm systems from their new regional office located in Windsor. The personal respondent was the corporate respondent’s Branch Manager; he had been promoted out of the corporate respondent’s Toronto headquarters to manage the new Windsor satellite location. The personal respondent would be responsible for driving the applicant and fellow salespeople from the Windsor office to designated residential areas where salespeople would disperse and knock on doors trying to sell contracts. At the end of each work day, the personal respondent would drive the salespeople, including the applicant, back to the Windsor office to complete paper work.
16The applicant alleges from December 27, 2006 to February 12, 2007, the personal respondent harassed her on the basis of sex. For example, the personal respondent had asked her what kind of underwear she was wearing; noted that when she crossed her arms she was hiding her chest from him; and referred to the cotton candy pop drink she drank as ‘cotton panties’.
17The applicant also alleges that the personal respondent engaged in sexual solicitation. For example, she was asked whether she wanted to go to a hotel room for her birthday; while at the office, on several occasions, whether she would sit on his lap; in the field, she alleges the personal respondent stated he was “going to jump” on her; and ultimately, whether she would perform “oral sex on him, and if I would ever sleep with him”.
18The applicant alleges she complained to the personal respondent and to Kamran Ameri, or as she referred to him in her Application as Cameron Omar. On this point there is no dispute, and I am satisfied that the applicant intended to identify Kamran Ameri when she referred to “Cameron Omar.” Indeed, the corporate respondent’s response and Mr. Chaudhary’s testimony confirmed that the applicant meant to refer to Mr. Ameri. Mr. Ameri was based out of the corporate respondent’s Toronto office. In her testimony, she noted Mr. Ameri had presented himself as corporate respondent’s general manager whenever he visited Windsor. She also stated that Mr. Ameri had indicated, shortly after she started, that she would likely become the Windsor office’s Branch Manager in the near future.
19In her Application, the applicant asserts the comments by the personal respondent were first made sporadically then progressively became more frequent. She asked the personal respondent to stop to no avail. In reply, Mr. Parsons stated that when she became the Branch Manager, she could harass people too.
20On or about February 10, 2007, the applicant states that she called Mr. Ameri in Toronto to complain about the harassment by the personal respondent. On February 12, 2007, she alleged that the personal respondent acknowledged that he had spoken to Mr. Ameri, and stated she was “being let go”. Mr. Ameri called her later that day, at which point she informed him that the personal respondent had terminated her. Mr. Ameri told her she was not terminated. After she asked him, Mr. Ameri confirmed that the applicant would still have to work with the personal respondent. In response, she stated she would not return to work.
21Although he was served with the Tribunal Application and advised by the Tribunal of the hearing date and venue, the personal respondent did not attend the hearing held in Windsor nor did he contact the Tribunal.
22Although the applicant testified Mr. Chaudhary interviewed and hired her, the corporate respondent did not contest that she had been hired as a salesperson on, as he referred to it, a sub-contracting basis. Although he noted the corporate respondent had a high turnover, Mr. Chaudhary admitted to remembering her from the 2006 Office Christmas Party. The applicant testified that Mr. Chaudhary had first interviewed her and then signed her commission cheques. She stated that at no time did she complain to Mr. Chaudhary.
23Mr. Chaudhary stated that the corporate respondent was not aware of any allegations of discrimination until it was served with the Commission complaint. When asked whether he sought to investigate the matter, he stated he did not investigate the complaint because he believed Mr. Parsons was not that kind of person. Mr. Chaudhary noted both Mr. Parsons and Mr. Ameri have since left the employ of the corporate respondent; the latter left after he participated in the mediation for this matter before the Commission.
24The corporate respondent submitted that it did have an anti-harassment policy which was made available to its employees and sub-contractors like the applicant. Mr. Chaudhary testified that the one-page policy dated November 1, 2004, which was attached to the organizational respondent’s response and the only documentary evidence relied upon, noted that harassment was “against the law”; more specifically, the Canadian Human Rights Act, the Canada Labour Code and the Criminal Code. The policy indicated that the corporate respondent promised to treat all complaints of harassment seriously. The policy noted that the corporate respondent would discipline anyone, including managers who did “not act properly to end harassment”.
25Ms. D’Alimonte testified that she had trained Mr. Ameri about the corporate respondent anti-harassment policy and that Mr. Parsons would have been aware of it. While the applicant denied seeing it posted in the Windsor Office, Ms. D’Alimonte noted that she herself had seen the policy prominently posted. Ms. D’Alimonte, was hired in 2003, and worked out of the Toronto office. As noted by Mr. Chaudhary, she was responsible for payroll and fielding calls from employees about sick time as well as complaints such as the applicant’s. Ms. D’Alimonte stated that at no time, during the relevant time, did Mr. Ameri, inform her of any complaints regarding Mr. Parsons.
THE CODE
26The relevant provisions of the Code provide as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex.
(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
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) In Part I and in this Part,
“harassment” means engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.
ANALYSIS
The Nature of the Applicant’s Working Relationship
27The purpose of section 7 (2) and (3) of the Code is to protect employees from sex harassment and solicitation in employment. The corporate respondent has asserted that the applicant was a sub-contractor and not an employee. The applicability of sections 7 (2) and (3) is sufficiently broad to apply to this applicant’s circumstances. Indeed, the applicant was certainly a person who worked on behalf of the corporate respondent and Mr. Parsons was someone in a position to confer, grant or deny a benefit or advancement. Since it is not disputed that Mr. Parson’s was an employee for the corporate respondent, there is no question that it could be vicariously liable for his actions.
28In any event, for the purposes of this matter, I am not satisfied the distinction is relevant with regard to the applicability of the Code. The Tribunal takes a purposive, functional approach to determining whether there is “employment” within the meaning of section 5 of the Code, see Szabo v. Poley, 2007 HRTO 37. Despite any intention by the corporate respondent, the applicant testified that she was driven to work locations by the corporate respondent and her work was managed by the corporate respondent. Indeed, I am satisfied that she represented the corporate respondent in the community reflected in the fact that she wore its logo on her name tag when she went door-to-door soliciting orders on behalf of the corporate respondent. In my view, these indicia support that the applicant was an employee under the common law test: see, 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59. As such, I am satisfied that the applicant was an employee within the meaning of the Code.
Findings
29There was no dispute that if accepted, Mr. Parsons’ statements would clearly constitute harassment based on sex and sexual solicitation.
30The corporate respondent submitted that despite the serious allegations presented by the applicant, that there was a lack of persuasive evidence to support that its Toronto office knew about her allegations. Further, the corporate respondent questioned the authenticity of the allegations on the basis that the applicant claimed that other sub-contractors had witnessed Mr. Parson’s harassment but she did not call anybody as a witness. Additionally, the corporate respondent submitted that its anti-harassment policy, as described by its two witnesses, was prevalently displayed to the extent that the applicant should have been aware of it.
31In the absence of the personal respondent, and despite the cross-examination of the applicant by the corporate respondent, I am satisfied that the allegations against the personal respondent should be accepted. Indeed, the applicant’s testimony was consistent and unshaken on all the important points of her Application. I placed no significance on the lack of corroborating witnesses; in the absence of both Mr. Parsons and Mr. Ameri, neither of whom were called as witnesses by the corporate respondent, there is no compelling reason not to accept the applicant’s allegations.
32Moreover, the corporate respondent has had several years to submit its evidence in response to the allegations and has chosen not to do so other than submitting a one-page policy. The corporate respondent did not undertake any sort of investigation let alone take statements from its employees named in the Application. Indeed, Mr. Chaudhary testified that both Mr. Parsons and Mr. Ameri were employed by the corporate respondent at the time the Commission complaint was served on it; in fact, Mr. Chaudhary noted that Mr. Ameri had carriage of the file that was before the Commission. Yet, there is no evidence that the corporate respondent even attempted to record either Mr. Ameri’s or the personal respondent’s version of events or compel their attendance at the hearing as witnesses. In this context, I find no basis to place any weight on the corporate respondent’s version of events.
33Therefore, I am satisfied the applicant’s right to be free from discrimination in the course of employment was infringed by the personal respondent. The personal respondent subjected the applicant to discrimination on the basis of sex and sexual solicitation.
34The corporate respondent has submitted that its liability, if any, should be limited because of its lack of knowledge of the complaint underscored by its strict anti-harassment policy and procedure which should have been followed by the applicant.
35The response of a corporate respondent to a complaint of harassment goes to the issue of remedy, rather than liability. Section 46.3 of the Code is a deeming provision that clearly establishes an employer’s liability for the acts or things done or omitted in the course of employment. That said, the reasonableness of the employer’s response, including the existence and content of an anti-harassment policy and related investigative procedure, if any, are relevant to a determination on remedy. As noted in Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 at para. 167:
There are six elements to the “Wall” test used to assess the reasonableness of the employer’s response, see: Wall v. University of Waterloo (1990) 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 (Ont. Bd. Inq.), at paragraph 160, which are summarized as follows:
There is an obligation of promptness in dealing with a harassment complaint.
There is an awareness by the employer that sexual harassment is prohibited conduct.
The issue must be dealt with seriously.
The employer must demonstrate that there is a complaint mechanism in place.
The employer has an obligation to provide a healthy work environment.
There is an obligation for management to communicate its actions to a complainant.
36Turning now to these factors, I am not satisfied that the corporate respondent had a very strict and comprehensive ‘anti-harassment’ policy or that it was utilised. Specifically, I am not satisfied that the anti-harassment policy was accessible to its sub-contractors. Mr. Chaudhary and Ms. D’Alimonte’s testimony about the corporate respondent’s strict anti-harassment policy and procedure was inconsistent at times, and on the whole, in disharmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable. For example, when pressed to explain what steps he took after he was aware of the applicant’s complaint, Mr. Chaudhary stated that he did not perform any investigation because he believed Mr. Parsons was not the type of person who would do what he was alleged to have done. In my view, this is inconsistent with the obligations of an employer or the practices of an employer that undertakes a strict anti-harassment policy, even if it believes the complaint is false. More troubling is the fact that, in the response filed with the Tribunal, Mr. Chaudhary denied knowing the applicant, whereas in his testimony, he noted he had met the applicant around the time she was hired.
37Additionally, when pressed, Ms. D’Alimonte could not provide any specifics of the human rights training for which she was responsible. In my view, the lack of detail was consistent with the actual one-page policy, which beyond failing to define harassment in any meaningful way, did not even reference the applicable legislation: Ontario’s Human Rights Code. Moreover, I am not satisfied that the policy was sufficiently accessible, even if predominantly placed within the Windsor Office since it did not provide a contact number, contact person or procedure for anyone to follow in case of complaint. As such, this was inconsistent with the corporate respondent’s statement in its response that the policy is ‘repeated’ on a daily basis. In my view, such information, when operating satellite offices, is more than prudent.
38I also do not accept that the corporate respondent was unaware of the applicant’s complaints. Since I preferred the applicant’s testimony, and in the absence of any evidence to the contrary, a complaint was made to Mr. Ameri. In the absence of any contact number on the anti-harassment policy, and since Mr. Ameri had held himself out to be Mr. Parsons superior, in my view, the applicant did contact the corporate respondent with her complaints. Mr. Ameri’s response to the complaint was to do nothing other than encourage the applicant not to quit, despite Ms. D’Alimonte’s testimony that he had been appropriately trained to address such issues. In my view, Mr. Ameri’s response was consistent with the response provided by Mr. Chaudhary after he became aware of the complaint: inaction.
39I am troubled by the corporate respondents’ attempt to limit its liability in this matter, especially since the testimony from its witnesses did not establish that it took any steps to deal with the applicant’s serious complaints. This is not a matter in which the thoroughness of the corporate respondent’s investigation requires an examination since it admitted it did not conduct one. Also, I heard no evidence to support that the corporate respondent had any type of mechanism or process for such investigations despite asserting it took such complaints seriously. Indeed, neither of the corporate respondents’ witnesses could outline any particulars to support that it had a procedure or template for such investigations let alone any procedure that fit within the corporate respondent’s alleged strict anti-harassment culture. Accordingly, I am satisfied that Mr. Ameri and the corporate respondent failed to conduct an investigation. Indeed, Mr. Ameri failed to investigate prior to the applicant’s resignation and it was this inaction that contributed to the applicant’s resignation.
40The corporate respondent also failed to investigate at any time after it was served with the underlying complaint filed with the Commission in 2007. In my view, such a failure to reasonably investigate exacerbated and compounded the infringement of the applicant’s right to be free from harassment on the basis of sex and sexual solicitation. Since there is no dispute that Mr. Ameri was an employee, during the relevant time, I am satisfied the corporate respondent is liable for the failure to investigate under section 46.3 of the Code and in the circumstances of this case.
41Additionally, in my view, the choice Mr. Ameri left the applicant; namely, to continue working with a superior who harassed and sexually solicited her was not a choice at all. While Mr. Ameri explicitly rescinded the applicant’s termination by Mr. Parsons, his inadequate response left the applicant no practical choice but to resign. As a result, I am satisfied that her resignation amounts to a constructive dismissal and that the corporate respondent is liable for Mr. Ameri’s inadequate response to the applicant’s complaints and her constructive dismissal.
42In the normal course, under section 46.3 of the Code, corporate respondents are liable for the actions of their employees, including employees like Mr. Parsons who abuse their authority within an employment context and Mr Ameri, whose response to the applicant’s complaint was so grossly inadequate that it rendered any anti-harassment policy that the employer may have had completely meaningless. In light of my findings above, there is no basis to limit the remedial liability of the corporate respondent for the actions of its employees, both Mr. Parsons and Mr. Ameri.
43The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent decisions of the Tribunal. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31.
44In Sigrist the Tribunal set out the general approach to this issue, stating as follows at para. 42:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
45I am satisfied that the applicant’s allegations against the personal respondent, accepted by the Tribunal, are so serious that it is appropriate to award a remedy specifically against Mr. Parsons. In the circumstances, the personal respondent was in a unique position of authority as a branch manager of a satellite office. In my view, the personal respondent’s position and nature of his control over the applicant necessitates an award against the personal respondent.
REMEDY
46The applicant stated that she was so emotionally upset by the infringement of her rights that after she resigned she could not work for several months. After leaving modelling, she noted that her job with the corporate respondent was her first ‘real job’. She indicated she liked her job, and felt she was good at it, and based on Mr. Ameri’s encouragement, she believed she had a future with the corporate respondent. Mr. Parsons’ conduct, in addition to affecting her ability to trust her managers, forced her to eventually find work in the bar and restaurant industry.
47The applicant indicated during the 2.5 months that she was employed with the corporate respondent she earned approximately $700.00 in commission. As noted above, she indicated she was unable to work due to the emotional upset of the infringement and was unable to seek and obtain work until mid-2007. She eventually left Windsor and sought opportunities in Europe before returning to Canada.
48Under section 45.2 of the Code, the Tribunal’s remedial powers are set out:
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:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Injury to Dignity, Feelings and Self-Respect
49It is well established that the Tribunal’s remedial powers are not punitive in nature. On the other hand, in assessing quantum, the Tribunal is to be mindful of not setting the amount too low as to effectively create a licensing fee to discriminate.
50In Sanford v. Koop, 2005 HRTO 53, the Tribunal summarized the factors to be used in assessing the appropriate quantum of damages. They are: humiliation experienced by the complainant; hurt feelings experienced by the complainant; a complainant’s loss of self-respect; a complainant’s loss of dignity, self-esteem and confidence; the experience of victimization; vulnerability of the complainant; and the seriousness, frequency and duration of the offensive treatment. In assessing quantum, the Tribunal is to be mindful of not setting the amount too low thereby trivializing the social importance of the Code and effectively creating a ‘license fee’ to discriminate. See; Sanford, at para. 34; also ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) at para. 152.
51The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant; and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., above, at para. 153.
52In these circumstances, I am persuaded that the infringement of the applicant’s right to be free from discrimination was objectively and subjectively serious. Moreover, the infringement was exacerbated by the corporate respondent’s lack of response which left the applicant no practical choice but to resign. In my view, after considering the circumstances of this matter, I find that both Mr. Parsons and the corporate respondent are jointly and severally liable for an award of $18,000.00 for infringing the applicant’s right to be free from harassment based on sex and sexual solicitation. In the circumstances noted above, I find that that such an award is appropriate. Additionally, the corporate respondent is liable for an additional $5,000.00 arising directly from the additional injury caused by its seriously flawed and unreasonable response.
53The Tribunal has ordered significant awards in matters relating to discrimination based on sex and sexual solicitation. See, Sandford, Hughes v. 1308581 Ontario Inc. o/a The Best Dollars Store/The West Dollar Store, 2009 HRTO 341, Hill-LeClair v. Booth, 2009 HRTO 1629, Ratneiya v. Daniel & Krumen, 2009 HRTO 1824, Harriet v. National Money Mart, 2010 HRTO 353. In these cases, awards were clustered at approximately $25,000.00.
54In my view, the decisions referenced above, involved circumstances in which touching occurred and/or medical issues resulted from the infringement on the basis of sex and sexual solicitation, and which led to an applicant’s termination of employment. In my view, an award of $18,000.00 is appropriate since there is no evidence that Mr. Parsons touched the applicant. Also, although the applicant testified that she was emotionally upset, her testimony in this regard was for the most part general in nature. Additionally there was no evidence to support that the infringement in this matter caused her such upset that it resulted in a medical condition.
55Further, in light of the circumstances noted above, I also find it appropriate to award $5,000.00 for the corporate respondent’s failure to investigate or otherwise respond in any way reasonably to the applicant’s complaint. As indicated above, I have found that the corporate respondent’s unreasonable response exacerbated the injury to dignity, feelings and self-respect and warrants additional compensation. Indeed, as outlined above, I am satisfied that the employer’s conduct, when assessed against the “Wall” test, was clearly unreasonable.
56I acknowledge that the total of the award thus far exceeds the total amount plead by the applicant. However, in the circumstances, I find the award is not inconsistent with the Tribunal’s case law regarding similar circumstances related to harassment based on sex and sexual solicitation. Further, I do not find the award relating to the failure to investigate is significantly inconsistent with the Tribunal’s previous awards for such inaction by a corporate respondent. See, Murchie v. JB’s Mongolian Grill, 2006 HRTO 33.
57I also find that it is appropriate to award the applicant pre-judgement interest on the amounts set out above, in accordance with section 128 of the Courts of Justice Act from the date of the Application (February 13, 2007).
Lost Income
58As noted in Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265, an applicant is under a duty to mitigate his or her losses by making reasonable efforts to obtain suitable employment. The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. It is the Tribunal which must assess what is reasonable in the circumstance.
59After earning approximately $700.00 in commissions in almost three months of employment, the applicant acknowledged that she did not look for work for some months thereafter. She related her lack of action to her emotional upset.
60Based on her testimony, I am not satisfied that the worker conducted a reasonable job search after she resigned to support she attempted to mitigate her losses. Aside from the fact that she did not provide any particularized claim or any other evidence to support her loss of income after her resignation, I am satisfied that an order for loss of income is inappropriate for the following reasons.
61Although I do accept that the applicant was emotionally upset, I find that there is no evidence to support such upset was particularly acute, nor that it was even sufficient to have prevented her from mitigating her loss of income for any period of time. Also, when pressed, the applicant could not distinguish or particularize the circumstances which prevented her from seeking employment from those that allowed her to begin searching for employment some months later to the extent that I am satisfied that the impact of the infringement of her rights prevented her mitigation even for a brief time. Further, as acknowledged by the applicant, she had the capability to more than mitigate her loss which she has subsequently accomplished.
ORDER
62Having found that the respondents have violated the Code, the Tribunal makes the following orders:
Within 30 days of this Decision, the respondents shall jointly and severally pay the applicant $18,000.00 in compensation for loss arising from injury to feelings, self-respect and dignity for the infringement of her rights under the Code;
The corporate respondent shall pay the applicant $5,000.00 as compensation for its failure to investigate the applicant’s complaints or otherwise reasonably respond, as noted above;
The applicant is entitled to pre-judgement interest on the above amounts in accordance with s. 128 of the Courts of Justice Act from the date of the Application (February 13, 2007), and;
If the respondents have not paid the applicant 30 days from this Decision, post-judgment interest is to accrue calculated in accordance with the Courts of Justice Act.
Dated at Toronto this 14th day of January, 2011.
“Signed by”
Jim Dimovski
Member