David Anamguya v. Intercon Security Limited, Blair Mitchell and Nicole Lentinello, 2011 HRTO 2186

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Anamguya

Applicant

-and-

Intercon Security Limited, Blair Mitchell and Nicole Lentinello

Respondents

DECISION

Adjudicator: Judith Keene

Date: December 6, 2011

Citation: 2011 HRTO 2186

Indexed as: Anamguya v. Intercon Security Limited

SUBMISSIONS

David Anamguya, Applicant ) Self-represented

Intercon Security Limited, Blair Mitchell ) David Whitten, Counsel and Nicole Lentinello, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 7, 2008. The Application alleges discrimination in employment. The Application, marked as Exhibit 1 for the purposes of the hearing on the merits, contained many allegations, most of which did not concern matters covered by the Code. The Application cites the Code-protected ground of sex and alleges sexual harassment and reprisal. The Application also states that the applicant had a psychological/mental illness and asserts that the events alleged resulted in weeks of admission to hospital for depression and stress. Pursuant to a letter dated March 8, 2010 from the applicant to the Tribunal and the respondents, the applicant added an allegation of “failure to accommodate employment”.

2In their Response to the Application (marked as Exhibit 5 for the purposes of the hearing on the merits) the respondents gave the following reasons for the termination of the applicant's employment:

• his ongoing failure to follow established procedure;
• repeatedly attending late or not at all for scheduled shifts and meetings;
• baseless allegations of sexual harassment against his supervisor;
• conduct suggesting homophobia and discriminatory behaviour;
• failure to advise that he would be out of the country for an extended period of time;
• damage to client property;
• sleeping on the job;
• using client computer equipment to access a social networking site, Facebook, while on shift;
• unreasonably refusing to accept assignments;
• failure to follow up Intercon’s code of conduct; and
• failure to adhere to Intercon’s Prevention and Resolution of Discrimination and Harassment policy.

3After hearing the evidence on the issues as identified, I have come to the conclusion that the applicant has not established that he was sexually harassed during his employment. However, the respondents have breached s. 8 of the Code, as one of the reasons for the termination of the applicant’s employment was his complaint of sexual harassment.

Procedural history, clarification of the issues

4This matter has a lengthy history, largely although not entirely because of disability-related needs of the applicant. The applicant was unrepresented, and his disabilities have made it difficult for him to fulfil his procedural obligations. The Application has been the subject of a number of a number of Interim Decisions and Case Assessment Directions (CADs). Evidence concerning the applicant’s disabilities has been adduced largely in response to procedural issues, such as whether the applicant should be considered to have abandoned the Application.

5On the evidence, the applicant has been living with one or more mental disabilities since childhood. He has been able to get some education and hold some employment. His employment with the respondents commenced on November 22. 2006, but he took an unauthorised absence from work between late December 2007 and January 22, 2008. Shortly after his return, he was homeless, living on the street and “sick and financially broke”. His employment was terminated on February 6, 2008. He had a period of incarceration. He testified that, at some point after his firing, his uncle “had to call the police” to get him treated, apparently involuntarily. His filed medical records indicate that he was admitted to hospital involuntarily on October 6, 2008, with a diagnosis of schizophrenia and possible bipolar disorder, which may be the involuntary admission to which he referred. He filed this Application on November 7, 2008.

6The applicant’s medical records indicate that he has been getting treatment for depression and schizophrenia since October 2009. He was still being treated with medication when he gave evidence on the merits of the Application in March, August and September of 2011.

7A hearing was held in respect of the respondents’ request that the matter be dismissed as an abuse of process, a request that was dismissed in an Interim Decision released on December 13, 2010 (2010 HRTO 2464).

8A hearing on the merits was commenced on March 23, 2011. In the interest of balancing disability-related needs of the applicant with fair disclosure of the case to the respondents, the hearing was limited in scope pursuant to an Interim Decision dated March 15, 2011 (2011 HRTO 523). That hearing was limited to clarifying the issues in the Application, and ensuring that the respondents had adequate disclosure.

9Disclosure issues were dealt with. I heard evidence from the applicant and his witness, Patrick Adu. Counsel for the respondents cross-examined the applicant and his witness. In cross-examination, Mr. Adu testified that when the applicant was working at the respondents’ place of business, he seemed “normal and intelligent”. The first time Mr. Adu noticed “peculiar behaviour” on the part of the applicant was around March 2008. Counsel for the respondent very fairly acknowledged that disability was an issue in the Application, although whether the applicant was affected by mental disability at the time he was employed, and, if so, the respondents’ knowledge of any disability affecting the applicant, were still issues.

10There had been no specific request from the applicant that the Application be amended to include the ground of disability, and he did not clarify whether his claim of “failure to accommodate in employment” related to disability. This had ramifications for the scope of the merits hearing, and thus for the case the respondents had to meet. The next hearing date was August 15, 2011. The respondents applied for an adjournment of that date. While the request was late, I granted it but issued a CAD dated August 11, 2011, directing that we would use some time on that date to clarify the substantive scope of the hearing. This CAD dealt with the clarification of issues as follows:

[6] If the Application is properly considered limited to the sexual harassment allegation, the issues are as follows:

• whether the incident of alleged sexual harassment occurred,
• whether the respondents met their duty to conduct an adequate investigation in the circumstances, and
• whether the inclusion of the applicant’s allegation in the respondents’ reasons for terminating his employment amounts to a reprisal in the circumstances.

7If the parties agree that the Application should be amended to encompass failure to accommodate on the ground of disability, other issues may include whether the respondents had reason to believe that the applicant’s performance at work might have been affected by disability at the relevant times.

11At the hearing on August 15, 2011, I allowed the applicant, who apparently reads very slowly, extra time to be sure that he had reviewed the CAD of August 11, 2011. The applicant confirmed his position that he had been sexually harassed while employed with the respondents. I asked him to identify which ground of discrimination he had in mind when he wrote that he did not receive accommodation in employment. The applicant said that he did not know. With the consent of the respondent, I asked him whether he was affected by his mental disability at the time he was employed by the respondent. He said he had not been. I concluded, and indicated to the parties, that the issues to be dealt with in the rest of the hearing were those set out in paragraph 6 of the CAD as quoted above.

The Evidence

12As noted above, the substantive issues for the purpose of this Application relate to the allegation of sexual harassment, and the issue of reprisal.

13Hearings on the merits were held on March 23 and on September 19, 2011. In addition to hearing evidence from the applicant and from his witness, Patrick Adu, I also heard evidence from Blair Mitchell, a senior account manager for the respondent. Mr. Mitchell was the person to whom the applicant’s supervisors reported while the applicant was employed by the corporate respondent, and was also the person who dealt with the applicant in respect of disciplinary reports filed by the applicant’s supervisors. Finally, I heard evidence from Nicole Lentinello, a human resources manager for the corporate respondent. All witnesses testified under affirmation.

14As noted above, the applicant commenced his employment as a security officer on November 22, 2006. His employment was terminated on February 6, 2008.

15The applicant agreed that he had gone through training and orientation to the job, including exposure to the corporate respondent’s internal complaint policy and review of the employee Manual. He testified that he was aware of how to bring any employment concerns to the attention of management, including concerns with supervisors, which could be brought to senior management, and that he had filed two Occurrence Reports to deal with unusual incidents unrelated to the subject-matter of the Application. The respondents filed documentary evidence that included emails from the applicant to senior supervisory staff during his employment, most of which were unrelated to the subject-matter of the Application.

16The respondents gave evidence, including documentary evidence, of repeated infractions by the applicant of corporate rules and policies. The infractions included lateness for scheduled shifts, failure to show up for work, damage to an elevator, and sleeping and using the internet for personal matters such as Facebook during working hours. The disciplinary reports were filed a considerable time before and up to a date almost two months before the applicant’s first allegation of sexual harassment; they included incidents dating from January 17, 2007 through mid-September of that year. Mr. Mitchell testified that he met briefly with the applicant in respect of several of these incidents.

17The applicant did not deny that the incidents that were of concern to the respondents had occurred, although his position was that his behaviour was justified in most instances.

18The respondents testified that the applicant had several supervisors during his employment. Of the ten written disciplinary reports filed by the respondents dated from January 19, 2007 to November 2, 2007, inclusive, seven were filed by supervisors other than the one who allegedly harassed the applicant. The last three, all filed on November 2, 2007, were filed by the applicant’s then supervisor, C.P. The respondent’s evidence was that C.P. supervised the applicant for a period of some two months; apparently October and November of 2007.

19The respondents filed an e-mail dated October 17, 2007, from the applicant to Mr. Mitchell. The e-mail discusses communication between officers and a request for an increase in pay as well as a request from the applicant to transfer from the site at which he was working (“Site A”) to “any site within the GTA”. The applicant stated that he was looking for evening and night shifts starting at 5 PM “due to personal and family problems” on which he did not elaborate. The e-mail did not mention C.P.

20The disciplinary reports filed by C.P. on November 2, 2007, concerned, first, the applicant’s failure to file certain required reports, and second, incidents of insubordination in which the applicant had allegedly shouted at C.P. in the presence of “office staff and management” when C.P. spoke to him about failure to fulfill his duties, and had failed to turn off Facebook when C.P. told him to do so. The third report indicates that the applicant had failed to comply with the corporate respondent’s dress code. Mr. Mitchell testified that the failure to file reports was a very serious issue that might have resulted in liability for the corporate respondent.

21Mr. Mitchell met with the applicant on November 5, 2007, to discuss his performance at Site A. Mr. Mitchell testified that the applicant asked for a “floating” assignment in which he could be working at a number of sites. Mr. Mitchell testified that floating was not an option for the applicant because the corporate respondent needed to fill permanent placements, and the applicant's performance issues indicated that he needed more supervision than he would have received in a floating position. Mr. Mitchell had decided to place the applicant at Site B, which was a lateral move rather than a demotion, after a complaint by the owner of Site A that the applicant had damaged an elevator. Both Mr. Mitchell and Ms Lentinello stated that C.P. had no part in the decision to transfer.

22Mr. Mitchell stated that he told the applicant on November 5 that he would be placed at Site B, and directed him to contact the management of the site so that he could start working there.

23Mr. Mitchell testified that during the meeting of November 5 the applicant had discussed things occurring at Site A that he did not like. The applicant did not elaborate about his concerns, and Mr. Mitchell concluded that the applicant's relationship with his supervisor, C.P., was not going well. The transfer was to a site at which the applicant would not have been supervised by C.P.

24The applicant e-mailed Mr. Mitchell on November 7, 2007. The e-mail states that, for “educational and personal reasons…I will not be able to honour the transfer but [would] like to be on floating shifts…”. The e-mail also states “I will be submitting to management with regard to this transfer and other issues that happened during the last few months.”

25Mr. Mitchell followed up the November 5 meeting with the letter of November 13, 2007. He confirmed that floating was not an option for the applicant, and indicated concern that the applicant had not contacted management of Site B as directed. The letter also addressed the applicant's reference to ”things happening at [Site A] that you did not like”. The letter says “you did not elaborate on what you stated that you would send me an e-mail outlining your concerns. You have not told me anything or sent me any information which you say is of concern to you. I would remind you of our upward communication policy. It would be inappropriate for you to escalate concerns before you have brought them to my attention. If you have concerns I would urge you to communicate them to me at your earliest convenience.” The letter concludes with Mr. Mitchell's opinion that the posting to Site B “is your best option at this point. If you do not accept this position, I will have no option but to accept this refusal of work as your resignation of employment.” The letter concludes with the name and telephone number of the management of Site B.

26The applicant first notified the respondents of his complaint of sexual harassment by letter dated November 15, 2007. The letter referred to a number of alleged workplace incidents that could be references to employment health and safety. In addition, the letter contains the applicant’s allegation of sexual harassment by C.P. The part of the letter that refers to the issues relevant to sexual harassment is a reference to the proposed transfer. The letter states that the applicant saw the transfer as “an attempt by [C.P.] to protect his personal misdeeds which had already begun before this specific issue. I have been approached, touched and in words, which can be perfectly retrieved from the camera on the site. [C.P.’s] use of persuasive words with the above support indicates his homosexual, indecent and unprofessional vibes toward me that created fear, and a request from the site due to the above sexual harassment and orchestration by [Mr. Mitchell] and [C.P.] without evidence.”

27Mr. Mitchell testified that he attempted to reach the applicant by phone without success. The applicant confirmed that Mr. Mitchell had left messages on his cellphone. Mr. Mitchell sent the applicant a letter dated November 20, 2007, referring to the applicant's letter of November 15, indicating that the letter appears to be missing a page, and asking that the applicant “forward the rest of your information so that I can review it”. He stated that the applicant did not respond.

28The applicant admitted that the letter of November 15, 2007 was his first allegation of sexual harassment, and the only information he gave the respondents before he left the country three weeks later for a period of some six weeks. The evidence was unclear at first about when this period, considered by the respondents to be an unauthorised absence from work, commenced. However the applicant supplied documentary evidence indicating that he left the country on December 6, 2007, and returned on January 16, 2008. The applicant confirmed in testimony that there was no other discussion of the alleged sexual harassment until he met with the respondents in January 2008.

29Mr. Mitchell testified that, within a week of the time he received the applicant’s November 15 letter, he visited Site A, spoke to the owner of the site and interviewed C.P. After speaking to the owner of Site A, Mr. Mitchell was satisfied that there were no health and safety issues. He described the owner of the site as ”impeccable” in its practices. In his interview with C.P., he informed C.P. about the allegations. He stated that C.P. was “incensed” and angrily denied the allegations. He also testified that C.P. had an excellent employment record and that no allegations of this nature had ever been made against him. This evidence was confirmed by Ms Lentinello on the basis of records from Human Resources. Mr. Mitchell’s conclusion was that it was likely that the allegations were accusations by an employee “with lots of management issues”.

30I inquired as to whether Mr. Mitchell had made any attempt to review the security videos at Site A, which appeared to have been referenced in the applicant's letter of November 15. Mr. Mitchell indicated that he had not done so. He also indicated that he had no idea of the dates upon which the applicant alleged the harassment had occurred, and that the videos were not archived but were regularly reused, which would erase any recording. He stated that he could not get in touch with the applicant, despite frequent attempts to do so, to obtain details that might narrow his investigation. The applicant did not deny that he did not advise the respondents that he had left the country until December 14, 2007, at which point the applicant left the respondents a voicemail.

31The respondents filed e-mails from the applicant that included an e-mail dated January 9, 2008, in which the applicant stated that he would be returning to Canada on January 15. By e-mail of the same date, the respondents asked the applicant to call to set up a meeting when he returned to Canada “so that we can discuss the contents of the letter you sent us and hopefully we will be able to address and resolve your issues”.

32On January 22, 2008, the applicant met with Mr. Mitchell and Ms Lentinello to discuss the e-mail and the November 15 letter. The respondents indicated that applicant expressed concern that C.P. had approached him in a “gay way“. Mr. Mitchell testified that the applicant indicated that C.P. had touched him on the shoulder, but was so vague in his explanation that he could not be sure whether the applicant was alleging that C.P. had placed a hand on his shoulder or simply brushed by him. Ms Lentinello testified that she asked the applicant whether he had requested C.P. to stop any behaviour that upset him. The applicant said that he had not done so and had “just walked away”. The applicant alleged nothing more concerning actions or statements by C.P. Mr. Mitchell testified that the applicant gave no other details and no dates, and brought no material for the respondents to consider. The respondents requested additional information in writing.

33Mr. Mitchell testified that the applicant gave no further written information but eventually the applicant brought in his memo books. The personal respondents checked the books but saw nothing that would confirm or refer to sexual harassment.

34The respondents concluded that the applicant's allegations may have reflected homophobia, but gave them no reason to believe that he had been sexually harassed. Mr. Mitchell stated that the applicant’s employment was terminated because of ongoing performance issues. The applicant’s letter of termination, dated February 6, 2008, indicates that the reason for termination is “ongoing performance issues and failure to accept an assigned position”. Both Mr. Mitchell and Ms Lentinello testified that these were their only reasons for the termination of the applicant's employment. Specifically they denied that they had taken into account the allegation of sexual harassment in deciding to terminate the applicant's employment. However, as discussed further below, Ms Lentinello later testified that on the day the applicant’s employment was terminated one of her concerns was that “Blair had not been able to substantiate the allegations of sexual harassment”. Mr. Mitchell testified that he would have fired the applicant much earlier if the applicant had not made an allegation of sexual harassment in the November 15 letter.

Did sexual harassment occur?

35The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536.) Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory; however, the onus of proving discrimination remains on the claimant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119).

36The Application of November 7, 2008 indicated that during “one of my shifts” a male newly appointed supervisor used “sexual terms in conversation with me and followed on another shift by touching my bottom and private parts”. The Application links these incidents to the termination of the applicant’s employment.

37In his testimony, the applicant could not recall when the sexual harassment alleged in the Application had occurred. However, it is obvious that if it occurred, it was sometime in the autumn of 2007, when C.P. replaced the applicant’s previous supervisor, and prior to November 15, 2007, when the applicant complained to the respondents in a letter.

38I accept the respondents’ evidence that the statements made by the applicant to the respondents in 2007 and early 2008 were relatively vague. His November 15, 2007 letter indicates that C.P. “approached” and “touched” him, using “persuasive words” that indicated “homosexual, indecent and unprofessional vibes toward me that created fear”. No further details were given in the letter.

39The applicant did not address the alleged conduct of C.P. in his testimony, although he filed a more detailed written description, dated March 9, 2011, as a witness statement to describe his intended evidence prior to the March hearing date, and adopted that statement. The applicant’s witness, who shared his home with the applicant just before he left the country in December 2007, did not address the alleged conduct of C.P. in his testimony. As noted above, the applicant left the country for several weeks and gave no more information to the respondents until the meeting of January 22, 2008, in which the respondents testified that he expressed concern that C.P. had approached him in a “gay way“. Mr. Mitchell testified that the applicant’s sole allegation concerning physical contact with C.P. was that C.P. had touched him on the shoulder, but that he could not be sure from what the applicant said whether the applicant was alleging that C.P. had placed a hand on his shoulder or simply brushed by him.

40The clearest and most detailed statement from the applicant concerning the allegations of sexual harassment is contained in a document headed “witness statement” and dated March 9, 2011. The applicant adopted this witness statement as his evidence of what had occurred, and stated that he had nothing to add. In the March 9, 2011 statement, the applicant states that, on “one occasion” at work C.P. grabbed the applicant's chest “and made some strange comments about it”. The statement indicates that the applicant took this as a joke and never said anything about it. The statement also says that “on a second day” C.P. “grabbed my bottom”. The document states that “I got mad at him and told him if he ever tried again I will punch him in the face. This ended our cordial relations.”

41Counsel for the respondents briefly touched upon the applicant’s statement of March 9, 2011 in cross-examination. The applicant could not explain why he recounted more detail of the alleged incidents in his November 7, 2008 Application, and his March 2011 written statement, than he had in his November 15, 2007 letter to the respondents, or in his meeting with them on January 22, 2008.

42The usual supposition is that a witness’s recollection and account of events is more reliable closer to the date of these events than it is later. In the applicant’s case, it is possible, on the facts submitted, that his ability to recount facts in late 2007 and early 2008 was affected by untreated mental illness for which he was later hospitalized, and that he was able to give better detail in 2011 when he was receiving medication. However, the applicant submitted no medical evidence that addresses his condition in late 2007 and early 2008. Further, in response to ambiguities within the Application and in an effort to accommodate the applicant’s disability-related difficulties within a legal proceeding, the applicant was given the opportunity during the hearing to assert that he was affected by his disability during his employment with the respondents. Counsel for the respondents, while vigorously advancing his clients’ position, very fairly and sensibly did not object to this degree of accommodation. The applicant stated that he was not affected by his disability, and it would be neither fair to the respondents nor respectful to the applicant’s personal autonomy, to conclude that he was.

43The respondents did not call C.P. as a witness, and it is possible that a negative inference could be drawn from this. However, the applicant’s evidence as a whole did not present a sufficient air of reality to support his written allegations that the alleged events had occurred.

44The applicant’s failure until at least November 7, 2008, to mention pertinent and important details of an incident alleged to have taken place in the autumn of 2007, despite earlier opportunities to do so, has not been adequately explained. More importantly, at the hearing, when invited to present his case concerning the alleged harassment, he offered no testimony at all. When prompted, he adopted his written submissions, but could or would add no further detail.

45I have no reason to doubt that the applicant believes that harassment occurred, but I must conclude on the basis of all the evidence that the applicant has not met his burden of proof to establish that the alleged sexual harassment did occur.

Did the respondents meet their duty to conduct an adequate investigation in the circumstances?

46It is a matter of settled law in Ontario that management employees are responsible for taking appropriate steps to prevent discriminatory harassment in the workplace from the point at which they knew or should have known of the offending conduct. A failure on the part of a management employee to take appropriate action may support a finding of personal liability as well as corporate liability for infringement of the right to a discrimination and harassment-free workplace. See Drummond v. Tempo Paint and Varnish Co. (No. 4) (1998), 1998 CanLII 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd.Inq.), at para. 51.

47In Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44, the Tribunal suggested six elements that can be used to assess the reasonableness of the employer’s response:

• 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.

48The respondents filed their anti-discrimination and harassment policy material in evidence. They testified that the corporate respondent had a “zero tolerance” response to harassment, and that employees were routinely given training that included the policy. They testified that C.P. had never been the subject of any complaints of harassment, and had “no performance issues”.

49In this case, the respondents (in the person of Mr. Mitchell, C.P.’s supervisor, who was later joined in a meeting with the applicant by Ms Lentinello) began an investigation into the allegation of sexual harassment that can be summarized as follows. Within a week of receipt of the applicant’s November 15, 2007 letter, they requested further information from the applicant (which was not provided), visited his worksite, and interviewed the alleged harasser, informing him of the allegations and getting his response. They continued to request further information from the applicant, eventually meeting with him very soon after his return to Canada. The applicant had alleged in his letter of November 15 that he had been touched; the respondents asked for further detail, and got only a further allegation that C.P. had touched the applicant’s shoulder and that he had approached the applicant “in a gay way”. The applicant did not make it clear whether C.P. had placed a hand on his shoulder or had brushed by him. The respondents gave the applicant the opportunity to submit more detail in writing. When he did not do so, they concluded that the applicant was overreacting to supervision and had a homophobic attitude, and that he had not in fact been sexually harassed.

50The respondents did not review the security tapes at the applicant’s worksite. However, Mr. Mitchell knew that the videos were not archived but were regularly reused, which would erase any recording, and he had been given no idea of the dates upon which the applicant alleged the harassment had occurred. He made several attempts to get in touch with the applicant to obtain details that might narrow his investigation, but the applicant had left the country and did not contact his employer. The investigation would have been more thorough if the respondents had reviewed the tapes, but the applicant did not assist them with detail about even the approximate date(s) of the alleged incident(s), and I agree with the submissions of the respondents that the standard for investigation is not perfection. I conclude that the respondents’ investigation was reasonable in all of the circumstances.

Was the applicant’s allegation a reason for the termination of the applicant’s employment and does this amount to a reprisal in the circumstances?

51As noted in the CAD of August 11, 2011, the specific issue here is whether the inclusion of the applicant’s allegation in the respondents’ reasons for terminating his employment amounts to a reprisal in the circumstances.

52Section 8 of the Code states:

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

53In Noble v. York University, 2010 HRTO 878 the Tribunal reviewed the elements of reprisal:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

…

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

54As noted in Smith v. Menzies Chrysler, 2009 HRTO 1936:

The respondent's intention may be inferred based on the complainant's reasonable perception that the respondent's action served as retaliation because of the complainant's assertion of rights: see Jones, supra, at § 107–15 and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal (2000), 37 C.H.R.R. D/481, 2000 CanLII 16800 (Ont. C.A.). Damages can be awarded separately for a violation of s. 8: see Ketola v. Value Propane Inc. (No. 1) (2002), 44 C.H.R.R. D/20, 2002 CanLII 46510 (Ont. Bd.Inq.) ("Ketola") and Curling v. Torimiro (No. 4), (2000), 38 C.H.R.R. D/216, 2000 CanLII 20870 (Ont. Bd.Inq.) ("Curling").

(at para. 162)

55In coming to a decision on whether the applicant’s allegation of sexual harassment was among the reasons for the termination of his employment, I considered two documents. The applicant’s letter of termination dated February 6, 2008, filed by the respondents as part of their document brief (Exhibit 6) cites “on going performance issues and failure to accept an assigned position” as reasons for termination. The Response, filed by the respondents on March 13 2009, admits that “baseless allegations of sexual harassment against his supervisor” were one of the reasons for the termination of the applicant’s employment.

56I also considered the testimony of the respondents. During Mr. Mitchell’s testimony-in-chief concerning the applicant’s firing, counsel for the respondents asked Mr. Mitchell whether the applicant’s allegation played any part in the decision to terminate. Mr. Mitchell said that it had not. He stated that he might have fired the applicant earlier had he not taken the time to investigate the allegation. This latter statement, which I accept, speaks to Mr. Mitchell’s belief that he had grounds to terminate the applicant’s employment prior to the allegation of sexual harassment, but does not add any further weight to his assertion that the allegation was not part of his reasons for termination.

57Ms Lentinello testified that the decision to terminate the applicant’s employment was made by her manager, herself and Mr. Mitchell. Ms Lentinello testified that performance issues and the refusal of a transfer were the reasons for the firing. The respondents’ counsel asked her if the allegation of sexual harassment was one of the reasons. Initially, she said no. I asked about the wording of the Response, and she simply repeated that the applicant's allegation had not been among the reasons. However, later in her testimony about the day the applicant’s employment was terminated, she also testified “my concern was that there had been ongoing performance issues and Blair had not been able to substantiate the allegations of sexual harassment”.

58The third individual who had been among the decision-makers, Ms Lentinello’s manager, was not called as a witness. Thus I have no knowledge as to what that individual’s reasons for the firing might be.

59I see the admission in the Response as an informal one, which, as a matter of evidence does not bind the parties and is open to be contradicted or explained. (See Paciocco, Stuesser, The Law of Evidence (5th Ed), Toronto: Irwin Law Inc., 2008, at 147-149.) Nothing in the respondents’ testimony explained why they included “baseless allegations of sexual harassment against his supervisor” in their Response as one of the reasons for the termination of the applicant’s employment. In Ornelas v. Casamici Restaurant, 2010 HRTO 1078, the Tribunal noted the importance of explaining inconsistency on an important point between statements made in an Application and a party’s testimony. Further, there was some internal inconsistency in Ms Lentinello’s testimony on this point, and I have no information as to the reasons of the third decision-maker, Ms Lentinello’s manager, for the decision to terminate. In the circumstances, I conclude that the applicant’s allegation was in fact one of the reasons for the termination of his employment.

60The respondents submitted that they had non-discriminatory and non-pretextual reasons to fire the applicant, and I accept this evidence. Does the presence of other reasons mean that a firing partly motivated by an allegation of sexual harassment does not breach s. 8? I do not think so, in view of the fact that a claim of breach of s. 8 of the Code is a stand-alone issue that does not require that there be a finding that “rights under this Act” that the applicant has attempted to “claim and enforce” were in fact breached. The fact situation in Jones v. Amway of Canada Ltd., 2001 CanLII 26217, can be distinguished; the Board of Inquiry in that case found that there was no causal link between the applicant’s complaint and the termination of her employment. The statement included in the Response in this case brings the facts more in line with those in cases such as Bertrand v. Primary Response, 2010 HRTO 186, Curling v. Torimiro (No. 2), 1999 CanLII 35167 (ON HRT), 36 C.H.R.R. D/468 (Ont. Bd.Inq.), Ketola v. Value Propane Inc. 2002 CanLII 46510, and Moffatt v. Kinark Child and Family Services (1998) (No. 4), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.).

61In this case, the respondents concluded that the applicant’s allegation of sexual harassment was “baseless”. In Staniforth v. C.J. Liquid Waste Haulage, 2009 HRTO 717, the Tribunal briefly expressed doubt as to whether a person who knowingly makes a false allegation of discrimination is protected from reprisal under section 8 of the Code. However, that is not part of the facts in this case. While the applicant did not establish that sexual harassment had occurred, I have no reason to believe that he deliberately made a false claim that it had.

62On the basis of these facts, I find that the respondents have breached s. 8 of the Code.

REMEDY

63As noted above, I have found that there has been a reprisal contrary to s.8.

64Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

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.

65Section 46.3(1) of the Code provides as follows:

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

66The corporate respondent has indicated that the personal respondents in this matter were acting in the course of their employment. In the circumstances of this case, I conclude that it is appropriate to make an order against the corporate respondent only.

67In his Application, the applicant requested “$10 million” as a remedy. His written explanation in respect of his calculation included “life threatening issues”, costs associated with his “trip” (apparently a reference to his expressed need to leave the country), psychological sickness and loss of income. He did not elaborate on this in his testimony.

68Section 45.2(1)1 authorizes awards of monetary compensation for infringement of “a right under Part I” of the Code, one of which is the right to be free of reprisal.

69Orders under s. 45.2(1) include reimbursement of out-of-pocket expenses and other objectively quantifiable losses (such as lost salary, benefits and financial opportunities) arising from the breach of the Code. In this case, I accept that the applicant had committed infractions of workplace rules, including behaviour that that might have resulted in liability for the corporate respondent, and consistently refused to accept a transfer to a site at which he would not be supervised by the individual whom he alleges sexually harassed him. In addition, the applicant took an unauthorized leave of absence. The respondents have established that there were reasons that do not infringe the Code for terminating the applicant’s employment. For this reason, I do not consider that an order for reimbursement of loss of salary is warranted.

70Section 45.2(1)1 also encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code. Recent decisions of this Tribunal have noted that both the individual’s reaction to how he or she was treated and objective considerations, such as recognition of the importance of a violation of the Code, should be addressed. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Sanford v. Koop, 2005 HRTO 53; and Dixon v. 930187 Ontario, 2010 HRTO 256.

71Quantifying intangible loss and distress is a difficult exercise. In this case, the situation is complicated because the applicant’s allegation of sexual harassment has not been established in evidence, although there has been a finding of reprisal under s. 8 of the Code. Further, most of the applicant’s evidence relevant to intangible loss and distress is connected to the loss of his employment, which I have found would have occurred in any event, for reasons that do not breach the Code.

72In coming to a decision on the appropriate quantum of compensation for intangible loss in this case, I have reviewed decisions of the Tribunal involving reprisal, such as Chan v. Tai Pan Vacations, 2009 HRTO 273, and Campe v. Borland Canada, 2010 HRTO 1257. However, I find the fact situation to be more comparable to that in Persaud v. Toronto District School Board, 2010 HRTO 1788. In that case, a student who had been suspended for 20 days and transferred to another school alleged discrimination on the part of the School Board. The Tribunal accepted evidence that the student had cheated on several exams and assignments, and was reasonably suspected of other infractions against school rules, and concluded that these infractions were a legitimate basis for the suspension. However, the Tribunal found that the transfer was occasioned by “disproportionate blame for an incident”, and that race and colour were a factor in the decision to transfer the student. On that basis, the Tribunal awarded $5,000.00 as compensation in recognition of the complainant’s inherent right not to experience discrimination.

73In Sanford v. Koop, above, the Tribunal discussed monetary compensation for intangible loss, concluding that the Tribunal should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. (Also see Shelter Corp. v. Ontario (Human Rights Commission) (2001), 39 C.H.R.R.D/111, at paras. 43 and 44 (Div. Ct.), Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161, at paras. 126-127 (Ont. Bd. Inq.), Gibbons and Ladouceur v. Sports Medic Inc. (2003), 2003 HRTO 26, 48 C.H.R.R. D/98, at paras. 49 and 50, Baylis-Flannery v. Walter De Wilde (No. 2) (2003), 2003 HRTO 28, 48 C.H.R.R. D/197, at para. 173 (Ont. Bd. Inq.). I conclude that the appropriate amount in the circumstances of this case is $3,000.

ORDER

74The Tribunal makes the following order:

(a) Within 30 days of this Decision, the corporate respondent shall pay $3,000.00 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity.

(b) The corporate respondent shall pay the applicant pre-judgment interest on the award noted in paragraph a) above calculated in accordance with section 128 of the Courts of Justice Act.

(c) The corporate respondent shall pay the applicant post-judgment interest on any accumulated principal and interest in respect of the award noted in paragraphs a) above, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.