Human Rights Tribunal of Ontario
Between:
Therese Kowalczyk Applicant
-and-
The Hudson’s Bay Company, Linda Forbes, Anne Donnelly and Homer Caliwag Respondents
Decision
Adjudicator: Mark Hart Date: November 16, 2011 Citation: 2011 HRTO 2064 Indexed as: Kowalczyk v. The Hudson’s Bay Company
Appearances
Therese Kowalczyk, Applicant ) Hugh Scher, Counsel
The Hudson’s Bay Company, ) Catherine Peters and Linda Forbes, Anne Donnelly and Homer Caliwag, ) Kathryn Bird, Counsel Respondents )
Reasons for Decision
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), dated June 9, 2009. The underlying complaint was filed with the Ontario Human Rights Commission sometime prior to October 2006.
2The applicant alleges that she experienced a sexually poisoned work environment contrary to ss. 5 and 9 of the Code, arising out of certain conduct alleged to have occurred during her employment as a part time cook in the Arcadian Court kitchen at The Hudson’s Bay store on Queen Street in Toronto. She also alleges that she experienced discrimination because of her ancestry, ethnic origin and place of origin contrary to ss. 5 and 9 of the Code, arising out of certain comments made by another employee and others, reprisal contrary to ss. 8 and 9 of the Code, and that the respondents failed to take appropriate steps to address her concerns. The applicant further alleges that she was terminated from her employment in part because of a disability for which she filed a claim with the Workplace Safety and Insurance Board (“WSIB”), contrary to ss. 5 and 9 of the Code.
3The hearing in this matter was held on April 19 and June 24 and 28, 2010 and on March 14, 2011 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that s. 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and one witness called on her behalf and from the three personal respondents and three other witnesses called by the respondents. Also on consent, I deferred cross-examination of party witnesses until after I had completed my questioning of all witnesses. Non-party witnesses were cross-examined in the normal course. In addition, all parties agreed to the bifurcation of this proceeding to first address whether or not the respondents violated the Code, and then at a subsequent time and only if a violation of the Code is found, to address the issue of remedy.
Background
4The Hudson’s Bay Company (“HBC”) operates a restaurant in The Bay store on Queen Street in downtown Toronto called the Arcadian Court. The Arcadian Court is open for lunch Monday to Saturday and hosts a variety of special events in the evenings.
5The applicant was employed as a part time cook in the Arcadian Court kitchen from November 30, 2001 until the termination of her employment on January 11, 2006. She was primarily responsible for preparing ingredients for dishes, hors d’oeuvres, and plate presentations.
6The personal respondent Homer Caliwag is the Sales Manager – Arcadian Court and Catering, and has held this position since 2004. Prior to this time, Mr. Caliwag was employed in the Arcadian