Ontario (Human Rights Comm.) v. Staubach Ontario Inc. (No. 1)

HR-1114-06

2011-05-20

2011 HRTO 979

Ontario Human Rights Tribunal

CHRR Doc. 11-1479

Kathrine Farris Complainant

and

Ontario Human Rights Commission Commission

v.

Staubach Ontario Inc., Harry McKeague, Michel Leonard, David Rose, Jeffrey Wells and Monique Papillon Respondents

Date of Decision: May 20, 2011

Before: Human Rights Tribunal of Ontario, Kathleen Martin

Appealed by: Ontario (Human Rights Comm.) v. Staubach Ontario Inc. (2012), CHRR Doc. 12-3060, 2012 ONSC 3876

File No.: HR-1114-06

Appearances by:

Kathrine Farris, on her own behalf

Prabhu Rajan, Counsel for the Commission

Arie Gaertner and Julia Lee, Counsel for the Respondents

SEX DISCRIMINATION — discriminatory treatment of employee — employment terminated for real estate agent — poisoned work environment — discrimination based on stereotypes — EMPLOYMENT — adequacy of employer investigation — obligation to provide discrimination-free workplace — EVIDENCE — credibility — LIABILITY — joint liability — DAMAGES — damages assessed for injury to dignity and self-respect — determining quantum by considering previous awards — duty to mitigate

Summary: The Human Rights Tribunal of Ontario ruled that Staubach Ontario Inc. discriminated against Kathrine Farris by requiring her to work in an environment poisoned by sex discrimination and harassment.

Ms. Farris was hired in 1997 initially by Tenant Resource (Ontario), which was later re-incorporated as Staubach Ontario Inc., with the same owners and managers, Henry McKeague and Michel Leonard. The company provided real estate services to commercial tenants. The complainant was hired as a real estate agent in the office, retail and industrial leasing sectors. Her responsibilities included prospecting for business through cold calls and attending industry events, negotiating agreements with clients, taking clients to view spaces and negotiating the terms of any leases or other agreements. The complainant was compensated on the basis of commissions.

Ms. Farris worked in a male environment. Her colleagues were all male, with the exception of a junior female colleague, who joined the company at the end of 2001, and female support staff. During the course of her employment, Ms. Farris was criticized for being "aggressive", "a woman in a man's environment" and "much like a man". She was called bossy and condescending, often because of behaviour that was no different from the men's.

A rumour was circulated among her colleagues that she was having an affair with her boss, Mr. McKeague. The rumour was used to explain Mr. McKeague's support for Ms. Farris and his friendliness with her, which her co-workers resented. Mr. McKeague's friendliness cooled after he learned of the rumour. Although this story was completely untrue, it persisted and was passed on to new staff, and to outsiders, by Ms. Farris's colleagues. Ms. Farris was also called "bitch", "crazy", "psycho", and "hateful spiteful cunt" or "HSC" for short, by her colleagues.

Ms. Farris' employment was terminated in 2003 because of the conflict in the workplace. Ms. Farris was seriously affected by the discrimination and by the termination of her employment. She had a panic attack in 2001 for which she was hospitalized. She had trouble sleeping, and she became withdrawn from her colleagues, and from her friends.

The Tribunal rejected the respondents' claim that there was no discrimination against Ms. Farris. They argued that she was the author of her own problems, as she was a difficult person to work with and was not always nice to support staff.

The Tribunal found that Ms. Farris was subjected to harassment and a poisoned work environment, which Staubach did not take appropriate steps to address, even though they were asked to do so a number of times by Ms. Farris.

The Tribunal awarded Ms. Farris $30,000 as compensation for injury to dignity.

See also (2004), 2004 CanLII 11325 (ON SC), 49 C.H.R.R. D/35 (Ont. Sup.Ct.) and (No. 2) (2011), CHRR Doc. 11-2278, 2011 HRTO 1778.

CASES CITED

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 38

Arunachalam v. Best Buy Canada Ltd. (No. 2) (2010), 71 C.H.R.R. D/126, 2010 HRTO 1880: 215

Bahen v. Catering 101 (No. 4) (2009), CHRR Doc. 09-2938, 2009 HRTO 2271: 227

Clennon v. Toronto East General Hospital (No. 3) (2010), 70 C.H.R.R. D/58, 2010 HRTO 506: 255

Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 40

Harriott v. National Money Mart Co. (2010), 70 C.H.R.R. D/1, 2010 HRTO 353: 227

Hope v. Maplewood Painting (2009), 67 C.H.R.R. D/168, 2009 HRTO 595: 227

Hughes v. 1308581 Ontario Inc. (2009), 67 C.H.R.R. D/81, 2009 HRTO 341: 227

Laskowska v. Marineland of Canada Inc. (2005), 53 C.H.R.R. D/262, 2005 HRTO 30: 178

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 37

Ratneiya v. Daniel & Krumeh (2009), CHRR Doc. 09-2403, 2009 HRTO 1824: 227

Sanford v. Koop (No. 2) (2005), 55 C.H.R.R. D/102, 2005 HRTO 53: 227

Smith v. Menzies Chrysler Inc. (No. 2) (2009), 68 C.H.R.R. D/374, 2009 HRTO 1936: 227

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 256

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

s. 5: 34, 163

s. 7: 34

s. 7(2): 163

s. 8: 34

s. 9: 34, 163

s. 45.2(1): 213, 258

1This is a complaint referred to the Tribunal by the Ontario Human Rights Commission (the "Commission") by decision made March 28, 2006, under the provisions of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), in effect at the time. The complaint alleges discrimination in employment on the basis of sex and gender as well as reprisal.

2The complaint arises out of the complainant's employment as a real estate agent with the corporate respondent, Staubach Ontario Inc. ("Staubach"), a company which represents commercial tenants in real estate transactions. The personal respondents are owners, managers or colleagues of the complainant. The complainant alleges she had to contend with a poisoned work environment for a number of years; that management was entirely non-responsive to the specific human rights concerns she raised; that she was unfairly denied referrals (a potential work opportunity); and that she was terminated contrary to the Code.

3The respondents deny all allegations. The respondents argue that while the complainant was discriminated against, such discrimination was not with respect to her employment and was not based on her gender. Instead, the respondents state that the complainant experienced differential treatment because of her behaviour, including that she was aggressive and confrontational. The respondents argue that while the complainant raised concerns, for the most part she did not frame her concerns as human rights issues, and in those instances where she did, the respondents took appropriate steps to address them. Finally, the respondents argue that the complainant was terminated because of their view that they either had to terminate the complainant or everyone else in order to improve the workplace environment, which in their view was problematic because of the complainant's behaviour.

4The issues in the case are:

i. Was the complainant subjected to a poisoned work environment or otherwise discriminated against in respect of employment?

ii. Was the complainant terminated contrary to the Code?

iii. Was the complainant discriminated against in the allocation of referrals?

iv. If there is a finding of liability, what remedy, if any, is appropriate?

5I have determined that the complainant was subjected to a poisoned work environment and discriminated against on the basis of sex. I have also found that the termination was in violation of the Code. I do not find that the complainant was reprised against nor do I find that allegations about the allocation of referrals are established. As a remedy, I award compensation for the injury to dignity, feelings and self-respect.

THE COMPLAINT AND THE PROCEEDING

6The complaint was filed with the Commission on December 1, 2003. The hearing of the merits began on May 2, 2007. I heard 58 days of evidence. The parties provided extensive written submissions supplemented by a day of oral final argument on October 6, 2009. There was a further hearing on February 1, 2010, for the purpose of reviewing the exhibits, following which written submissions were filed in support of a request that certain information not be disclosed in the decision. As a result of my findings and conclusion below, I do not find it necessary to decide the request, as the sensitive evidence is not relevant to my decision.

7I heard evidence from the complainant, the respondents and 16 other witnesses. The witnesses included other employees in the workplace (including one employee from the U.S. office), two psychiatrists who treated the complainant, former clients/vendors of the corporate respondent, a psychologist who was brought in to address what was believed to be conflict among the agents, and an expert on sexual harassment and discrimination. At the request of the complainant, the proceeding was recorded by the Tribunal. The Tribunal does not generally record its proceedings. I indicated that the Tribunal could not guarantee the quality of the tape recording nor would it be part of the Tribunal's record. There were a few days where the equipment was not available and other occasions when there were recording difficulties. Where available, the Tribunal provided the parties with discs of the recorded proceedings.

8One final point about the record should be noted. The parties produced document books with the documents they intended to rely on as exhibits. For ease of reference there was an agreement that the documents would be marked by party and in accordance with the tabbed numbers in the document books given the volume of material. Ultimately, the parties did not refer to every document provided, with the result that the exhibit numbers are not consecutive.

OVERVIEW

9The basic chronology of events was not in dispute although there were divergent views as to the details and how the events should be interpreted. In this section, I will provide an overview of the complainant's employment to provide some context to my more detailed account of the evidence which occurs in the analysis and findings below.

10The complainant was initially hired on November 17, 1997, by the Tenant Resource (Ontario) Corporation, a company located in Toronto. The business of the company was a tenant representation real estate brokerage — i.e. providing real estate services to commercial tenants. Tenant Resource had a sister office in Montreal operating under the name of the Leonard McKeague Group Inc. The Toronto office was managed by Harry McKeague and the Montreal office by Michel Leonard. Both Mr. McKeague and Mr. Leonard are individual respondents and remained the owners and managers of the respondent corporation in the context of the Canadian operation throughout the complainant's employment.

11The complainant was hired as a real estate agent in the office, retail and industrial leasing sectors, representing tenants and buyers only. More specifically, her responsibilities included prospecting for business (through cold calls, attending industry events to network or otherwise), negotiating a mandate (an agreement to provide a client with service), taking the client to view space and negotiating the terms of any lease or other transaction on behalf of the client with a landlord. The complainant was compensated on the basis of commissions.

12At the time the complainant was hired, the Toronto office was small. Apart from Mr. McKeague, there were only two other full-time employees and a temporary administrative assistant. Although the complainant had come from another real estate firm, her experience was not extensive and Mr. McKeague became a mentor to her.

13In April 1999, the corporate structure changed. The companies owned by Mr. McKeague and Mr. Leonard entered into a licensing agreement with The Staubach Company ("TSC"), a company based out of Dallas. The Toronto operation was incorporated as Staubach Ontario Inc., the corporate respondent. Staubach was owned by a holding company, Staubach Canada Inc. Mr. McKeague and Mr. Leonard continued to own and manage the operations.

14During the course of the complainant's employment, the number of agents and support staff increased in the Toronto office. The complement of agents remained predominantly male. The agents hired who stayed for a period of time and their respective dates of hire were as follows: Shawn Stephenson (1998), Steven Bronetto (1999), Colin Currie (1999), Jeffrey Wells (Nov. 2000), David Rose (early 2001), and Kelly Laughton (2001). By the end of 2001, the complainant had four male colleagues and only one female colleague, Ms. Laughton, who had only recently commenced her employment and worked primarily in the retail sector, which was a different unit from where the complainant worked. Two of the complainant's male colleagues, Mr. Rose and Mr. Wells, are named respondents.

15The support staff in the Toronto office was exclusively female. In addition, in the Montreal office, the complainant had dealings with various staff, including the support staff; the respondent Monique Papillon, Director of Finance and Administration; and other administrative staff. As will be reviewed below, as time went on, the complainant had difficulties with both support and administrative staff. The Commission and complainant argue that the difficulties were because of, or at least exacerbated by, the poisoned work environment, while the respondents assert it was due to the complainant's demanding and otherwise inappropriate way of dealing with staff.

16The business was highly competitive. In general, agents were compensated on a commission basis for the deals and transactions they reached, usually by the landlord involved in the transaction. Several witnesses described the environment as one where you "eat what you kill". I also heard evidence that, given the competitive environment, agents were protective of their own leads and business opportunities and that referrals were a regular source of contention among agents. While the evidence indicated that agents sometimes collaborated, the collaboration was very much self-interested.

17As mentioned, the agents derived their work through two main sources: self-generated (i.e. generated directly by the agent through cold calls or other contacts) and referrals (which came to an agent from the manager of the office or from another Staubach office). Referrals only presented a potential source of business as the agent still had to negotiate a mandate, find the space and be paid for it for [sic] before any money would accrue to the agent. In the last couple years of her employment, the complainant's referrals went down, which forms part of the basis of her complaint.

18The complainant was viewed favourably by her clients. Her manager, Mr. McKeague, described her as having great potential to become a "star agent". However, with some very limited exceptions, she was not sought out as an agent to collaborate with by others for reasons which were in dispute and which are addressed in more detail below.

19Starting in mid-2001, the complainant began to raise concrete concerns with her employer, the details of which are addressed below. Ultimately, this led to the corporate respondent retaining Sam Klarreich, a psychologist with experience in workplace conflict issues, to investigate and make recommendations.

20As a result of Dr. Klarreich's involvement, the corporate respondent implemented two Codes of Conduct: The Staubach Canada Code of Conduct (which among other things, outlined the need for respect for each other, abiding by certain rules and a process to resolve grievances); and The Staubach Canada E-Sales Code of Conduct (which regulated the conduct of consultants vis-à-vis "prospects", potential business opportunities, including checking e-sales to ensure no other consultant is pursuing it and a grievance procedure to address disputes). The former Code contained a provision stipulating that no activity would be engaged in, either individually or as a group, which demeans any co-worker or discriminates against them.

21At a subsequent meeting, all employees were required to sign off on these Codes of Conduct.

22In addition, the complainant continued to engage with Dr. Klarreich in what was described as coaching sessions. In the period from late 2001 to 2002, she had five one-on-one sessions with Dr. Klarreich.

23In early 2002, the complainant was on a celebratory lunch with a third-party vendor who told her that another agent said she was sleeping with Mr. McKeague.

24It was undisputed that the allegation of a relationship between the complainant and Mr. McKeague was false.

25Following the disclosure of the rumour, the relationship between the complainant and Mr. McKeague changed, although to what degree is in dispute.

26Throughout 2002 and into early 2003, the complainant had a series of conflicts with support and administrative staff. The Commission argues this was indicative of a growing poisoned work environment. The respondents argue this was as a result of concerns raised by support staff. These conflicts are reviewed in greater detail below.

27On June 18, 2003, the complainant's employment was terminated. The termination was characterized as "without cause". According to Mr. McKeague, the corporate respondent concluded that it either had to terminate the complainant or let everybody else go; they opted for the former.

28In November 2004, the U.S. company TSC revoked the licence of Staubach. Staubach is no longer operational.

Expert Evidence of Dr. Sandy Welsh

29Dr. Sandy Welsh gave expert evidence in sexual harassment and gender discrimination in the workplace. Dr. Welsh has a Ph.D. in Sociology and is an Associate Professor and Associate Chair in Graduate Studies of the Sociology Department at the University of Toronto. Dr. Welsh was qualified without objection although the respondents did subsequently object when Dr. Welsh's evidence strayed into expressing an opinion on some of the complainant's allegations. I ruled that this evidence would be received but that what weight, if any, would be given to it could be subject to argument at the end.

30Ultimately, while I found some of Dr. Welsh's general opinions about gender discrimination to be of some assistance, I do not find that her opinions on the particular facts before me to be helpful and have not relied on them.

31Dr. Welsh testified about sexual harassment and gender discrimination generally. She stated that gender harassment is based on hostility regarding a woman's visibility in a male-dominated workplace and that research shows that gender discrimination is most likely to occur in such a workplace. Dr. Welsh explained that the type of woman typically subjected to such discrimination is assertive and is a strong professional. Dr. Welsh stated "uppity women" or women who do not engage in traditional feminine behaviours of nurturing and deference may experience hostile environment harassment as they are perceived as transgressing traditional gender roles and/or as a threat or competition in the workplace. "Uppity women" are viewed as seeking power, influence and stepping outside of what a female should be doing. In contrast, these similar traits in men are viewed as a positive.

32Dr. Welsh also testified that both men and women perpetuate this type of harassment in the workplace — in the case of other women, they may view "uppity women" as trying to be better than them, gaining access to authority that is denied to them and not acting in an "appropriately" nurturing way.

33Dr. Welsh commented that being assertive and aggressive was gendered insofar as when a woman portrays a behaviour that would otherwise be considered "assertive" if she were a man, it is characterized as "aggressive". However, in cross-examination, Dr. Welsh also agreed that it was possible that a woman could be condescending and abrasive disproportionate to the situation such that it becomes something other than assertive and results in such a woman suffering isolation.

LEGAL PRINCIPLES

34The relevant provisions of the Code are ss. 5, 7, 8, and 9.

35In general, the parties agreed on the governing principles for establishing liability.

36The initial evidentiary burden rests with the Commission and complainant — they must establish, on a balance of probabilities, a prima facie case of discrimination in respect of employment on the basis of the prohibited ground of sex/gender.

37In Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at § 28 [7 C.H.R.R. D/3102 at § 24777], the Supreme Court of Canada held that a prima facie case is:

. . . one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.

Once a prima facie case is established, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If the respondent provides such an explanation, the complainant has the ultimate burden of demonstrating that the alleged discrimination is more probable from the evidence than the actual explanation offered by the respondent.

38Discrimination has been defined as (Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at § 37 [10 C.H.R.R. D/5719 at § 41759]):

. . . a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

39In evaluating what occurred in this case, in essence, the question is whether the complainant was treated adversely or disadvantaged in some way and, if I am satisfied that she was, is there a nexus between the adverse treatment or disadvantage and her gender. It is well established that a prohibited ground need only be one factor in the adverse or disadvantageous treatment to lead to a finding of liability under the Code.

40Credibility is critical in this decision. In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356:

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is credibility. . . In short, the real test of the truth of the story of the witnesses in such a case must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and under those conditions.

41In addressing credibility, the parties urged me to make a global assessment of the credibility of each witness. With a few exceptions, I did not find it appropriate to do so in this case. Particularly with the party witnesses, I found their evidence was better assessed on an issue-by-issue basis. As is common once litigation is commenced, parties begin to see events through the lens of their position. I found this perspective was present with most of the party witnesses.

42Having not made a global assessment I have approached the assessment of each witness' evidence being mindful of the considerations in Faryna but also considering the witnesses' motives, their ability to recall events, their relationship to the parties and the internal consistency of their evidence and the inconsistencies and contradictions in relation to other witnesses.

ANALYSIS AND FINDINGS

Did the respondents create and permit a poisoned work environment or otherwise discriminate against Ms. Farris?

43The Commission alleges that the complainant was subjected to a poisoned work environment based on her sex or gender. While conceding that it is impossible to specifically delineate what caused or constituted the poisoned work environment, the Commission states that it came about and thrived as a result of a confluence of four elements:

· the complainant was viewed as an atypical woman and held in disdain for it;

· a vicious sexual rumour was spread about the complainant;

· the male agents made sexual comments directly to the complainant and referred to her using offensive remarks with each other and with others; and

· management was not merely non-responsive but complicit in permitting the poisoned work environment.

44The respondents take a very contrary view of events, arguing that the complainant's manner of being aggressive, confrontational, condescending and exhibiting other negative qualities is what caused the perceptions of her and the reactions of her co-workers. While acknowledging the existence of the rumour and that certain of the comments made were sexualized, the respondents suggest that the complainant's own use of profanities and sexualized comments must be considered in assessing what injury was done to her. Further, the respondents dispute the details, including the frequency with which such comments were made, suggesting that the Commission has only identified 11 such comments made in 5.5 years. The respondents also argue that many of the comments were not made directly to the complainant and are not gender-related. With respect to the rumour, the respondents argue that it was dealt with appropriately.

45I agree with the respondents' argument that someone may be treated adversely for reasons unconnected to Code. However, this does not mean that a difficult person cannot experience discrimination. In this case, I do accept that the complainant was a difficult person. However, when I review the totality of the evidence, I have difficulty concluding that her manner of dealing with people was the entire cause of the negative working environment.

46Further, in assessing the evidence about the complainant's "difficult" personality, I found that in many instances, it consisted of adjectives (e.g. condescending, confrontational) but with limited particulars, thus impeding any meaningful assessment. Also, the evidence generally reflected that this workplace environment had a number of difficult individuals and that the complainant was not the only person in the office whose behaviour could be characterized as difficult.

47Several of the other agents acted in ways similar to those for which she was criticized. For example, the corporate respondent described Mr. Wells as "abrasive", "speaks before he thinks" and "talks down to people" to Dr. Klarreich when briefing him after he was retained to investigate the workplace environment. In addition, Mr. Wells described himself as condescending. Also, while Ms. Laughton, another agent in the office, described the complainant as a bully (which she clarified meant somewhat overly aggressive in dealing with people), she described Mr. Rose as giving "new meaning" to the word bully. In assessing this evidence, it appears that the male agents were given latitude not afforded to the complainant.

48In my view, after considering all of the evidence, I am satisfied the complainant's gender was a factor in the differential treatment she experienced.

49Before turning to the evidence, I will address the issue of Dr. Connell's evidence. Dr. Connell was a psychiatrist who saw the complainant briefly to deal with issues not directly related to this case (his last contact with the complainant was in 2000). Initially, the respondents sought to call Dr. Connell as a witness because there was reference in his notes to the complainant describing what appeared to be a panic attack prior to November 2001. As the case proceeded, however, the respondents called Dr. Connell for the additional purpose of establishing that he had a "working diagnosis" that the complainant had a condition that substantiated their description of her dealings with others. While I permitted this evidence to be introduced subject to determining its weight, at the end of the day, I do not find it to be of assistance in determining the issues in the case. While the respondents may reasonably rely on the complainant's conduct in the interactions that occurred as an explanation for what transpired, I do not find it necessary to explore the underlying reasons.

50I will now turn to a review of the evidence. In summarizing the evidence I do not find it necessary to make findings of fact on every allegation nor do I find it necessary to determine every issue of contested evidence. Ultimately, I have only made findings where it affects my decision.

The Early Years

51Several witnesses testified about the early period of the complainant's employment. The complainant painted a generally positive picture. In comparison, Mr. McKeague stated that, while the complainant got along with one agent, Robert Belisle, she got along less well with another employee, Margaret Hutchinson. However, when asked to explain, he suggested there was a "cold demeanour" and "lack of friendliness". I am not satisfied this evidence supports a conclusion the complainant had difficulty with other employees during this period.

52In late 1998, Mr. Currie joined Staubach and then moved to the Toronto office in early 1999. Mr. Currie was a witness for the respondents, and in general, I found Mr. Currie's evidence to be measured, and as a result credible. He testified that everyone got along "reasonably well" through 1999.

53The complainant's relationships with support staff also appeared unremarkable at this period in time. For example, Stephanie Currie, who was employed from January 1998 to 2000, testified the complainant was "demanding" and louder than others. However, the details that she relied on to arrive at this conclusion seem innocuous. For example, she considered the complainant to be demanding when she said "I need this done" and she was loud because she conducted business on a speaker phone.

54The complainant worked closely with Mr. McKeague during her early years. They got along well and, as noted earlier, Mr. McKeague functioned as a mentor, providing advice on work issues and offering encouragement. They were mutually complimentary. Mr. McKeague referred to the complainant as being honest and, as noted above, felt she had the potential to become a "star" agent.

Perceptions of Ms. Farris

55In the hearing, there was evidence of how the complainant was perceived by her managers and co-workers. Some of this evidence appeared to reflect gender-stereotypical views of women in a workplace setting.

56For example, Dr. Klarreich's notes of his initial meeting with Mr. McKeague and Mr. Leonard about the workplace conflict note that the complainant was described as "aggressive"; a "woman in a man's environment"; and "much like a man". Dr. Klarreich said that the notes were written contemporaneously in the meeting and he believed the information in his notes came primarily from Mr. McKeague. Mr. McKeague had very little recall of the initial meeting with Dr. Klarreich.

57By comparison, when Mr. McKeague provided evidence about Ms. Papillon, another woman in a senior position with the corporate respondent whom he stated was well-liked and never the subject of complaints, he described her as "like a mother hen", close to the "girls" that worked for her, and "protective". While not expressed directly, Mr. McKeague appeared to be saying that these qualities — of mothering or being protective of her staff — resulted in good relations with her co-workers.

58I made similar observations about the evidence of Karine Mageren. Ms. Mageren described the complainant as "demanding" and "cold"; however, when these descriptions were explored it appeared they were very much connected to gendered behavioural expectations. For example, the complainant told Ms. Mageren to attend a meeting on a particular date rather than asking whether she was available to attend on that day. The term "cold" was equally applicable to the Toronto agents all of whom, other than the complainant, were men. Ms. Mageren defined "cold' as meaning "business-like" or "professional".

Allegations of Exclusion and Isolation Related to Work Opportunities

59The complainant alleges that, as the number of agents increased, the work environment changed and she became excluded and isolated. Her perception of hostility was based to some degree on actual comments (which are dealt with in various sections below), and the contention that she was being excluded from work opportunities with other agents.

60The respondents agreed that in general, the complainant was not approached to team up. In their submissions they say the situation arose for legitimate reasons.

61There is no doubt that, as the number of agents grew, there was pairing up and some group efforts to obtain business. Mr. Currie and Mr. Rose entered into an association where they worked together on files and split the commissions. Mr. Wells and Mr. Bronetto also did some work together.

62In commenting on why he did not want to work with the complainant, Mr. Currie explained she had a different style from him and they both wanted to lead.

63More negative views were expressed by Mr. Rose and Mr. Wells. Mr. Rose stated that he had had very little contact with the complainant but the contact he had was problematic. For example he attended a meeting with her involving Toronto Hydro and, although he contributed, she did not give him any part of the commission. He also said that he found her tone and demeanour embarrassing; she had a grandiose style, saying things like, "Staubach is best".

64Similar views were expressed by Mr. Wells. Mr. Wells relied on his experience with the Toronto Hydro account where he went to a couple of meetings and then, when he asked if anything had transpired, the complainant was evasive. He stated that he found out later that she had secured a mandate. The complainant had called him a "rookie", which he found condescending, and they had different styles. In his view, she was opportunistic in her approach, whereas he was methodical and researched.

65Mr. Bronetto, the other agent there at the time, did not testify. However, the evidence of others suggested that Mr. Bronetto believed that the complainant was trying to steal his business. Notably, Mr. McKeague acknowledged that the allegation of stealing made against the complainant was unfounded (although Mr. McKeague did view a subsequent incident involving the complainant and Ms. Laughton differently, which is addressed below).

66I did not find this evidence alone conclusive that the other agents did not want to team up with the complainant because of her gender. While it was clear that the agents did not work with the complainant, on their face, the explanations seemed legitimate. I note that other frictions developed between agents on the issue of work. For example, Mr. Rose and Mr. Currie eventually had a falling out and Mr. Currie expressed that he stopped interacting and talking to both Mr. Rose and Mr. Wells. Based on all of the evidence, and the nature of the commission-based practice, I do not find the Commission has met its onus.

67The complainant offered other examples of specific incidents where she felt excluded or isolated. I did not find the evidence sufficient with respect to the following to establish differential treatment:

· When she obtained the TLC Laser Eye Centre deal Mr. Currie and Mr. Bronetto did not congratulate her. She could not recall ever congratulating them on deals.

· Mr. Wells invited all of the other agents to a site visit but did not invite the complainant, although she acknowledged that she may have been absent that day. The complainant asked to go and when she did attend, Mr. Wells introduced her as Mr. Bronetto's assistant. Mr. Wells denied this. This allegation was not included in the complaint or in the statement of facts and issues, which I would have expected given the allegation being made. In all the circumstances I am not convinced that the statement was made.

· The complainant stated that she was excluded from office socializing although the details were limited. On one occasion she was not invited when the male agents went out for lunch with Ms. Papillon when she was visiting, and on another occasion she discovered the male agents in a meeting which Mr. Wells advised was an educational meeting which had nothing to do with her. Most agents could not recall these incidents.

· The complainant alleged that she was unfairly excluded from the preparation of a proposal to get on a service providers list for the Ontario Realty Corporation ("ORC"). She states that she was absent on the day it was prepared although her square footage details were included in the proposal (the agents had to collectively have a certain square footage of business to qualify). When she came back and asked to join in, her request was denied. She states that she was accused of "wanting a free ride". The evidence of the respondents' witnesses (Mr. Wells, Mr. Rose) was to the effect that she was not invited initially, but was at some point (in Mr. Rose's recollection, because of Mr. McKeague). There was a general view among respondents' witnesses that the complainant only wanted to become involved once they had been placed on the eligible service providers list.

· The complainant also relied on an incident involving a prospective client, 360 Networks, that occurred in the United States while she was attempting to develop a mandate with colleagues there. Her concerns in this case were somewhat vague; she was not part of the "buddying around" and was not included as the Team Leader. She complained to Mr. McKeague, who recommended that she speak to Kay Cotter, a senior person in the U.S. company, "woman to woman". Ms. Cotter told her to assert herself and demand to be treated equally as a professional. Given the allegation relates to the U.S. operation, I do not find it relevant to my determinations about the situation in the corporate respondent's Canadian workplace.

The Sexual Rumour

68It was undisputed that during the time of the complainant's employment, there was a rumour that she was having a sexual relationship with Mr. McKeague. The evidence differed with respect to the details of when the rumour arose and how far it spread as well as what impact, if any, it had on the complainant.

69The complainant was unaware of the rumour until sometime in early January 2002 when a third-party vendor disclosed that she had been told that the complainant was sleeping with Mr. McKeague. In particular, the vendor told her that Mr. Bronetto said she drove the car she did (a Mercedes) because she was sleeping with Mr. McKeague. The vendor also told the complainant that Mr. Bronetto had threatened that, if she worked with the complainant, the four male agents would not work with her.

70The complainant reported the information to Mr. McKeague. Mr. McKeague confirmed the rumour and the details of the conversation as reported to the complainant. In doing so, he also discovered Mr. Bronetto had taken kickbacks from the vendor, which was considered to be an illegal practice. Mr. Bronetto was disciplined for both the rumour and the kickback. He received two strikes under the corporate respondent's discipline policy, was required to repay the amount taken as a kickback and to make a donation to a woman's shelter or not-for-profit organization that helps women. Mr. Bronetto resigned from his position soon afterwards.

71However, the evidence shows that the rumour did not cease and continued to be an ongoing source of discussion among the complainant's colleagues and co-workers. With one exception, all the witnesses who testified in the hearing who worked at Staubach and the Montreal office acknowledged the existence of the rumour.

72Mr. Wells stated that he became aware of the rumour during the interview process while he was meeting the consultants in the Montreal office. He stated that the rumour was alluded to as an explanation for the complainant's preferential status in Toronto. Mr. Wells denied that it led him to form any opinion of the complainant although he stated that it was possible it was thrown into the mix. As for frequency, he stated that it came up quarterly and less frequently over time. During his interview with Dr. Klarreich, he was asked if he believed that the complainant and Mr. McKeague were having an affair. Mr. Wells denied perpetuating the rumour with Ryan Gill, a junior agent, who suggested otherwise.

73Mr. Rose testified that he became aware of the rumour early on in his employment but he could not recall from whom. He states that it came up "periodically" in response to some unusual abnormal relationship; elsewhere he stated that it came up when issues and conflicts arose and the complainant would win the day. He acknowledged that he was asked by Robert McClatchey, another agent who worked there briefly, if the two were sleeping together and Mr. McClatchey made a gesture with his hands simulating intercourse. Mr. Rose denied that the rumour had any impact on his view of the complainant suggesting that what bothered him more was that she got the lion's share of the referrals and won battles that she initiated.

74Mr. Currie testified that he became aware of the rumour sometime in 2001 to 2002. He stated that he believed it for a period of time. He stated that he found it strange but it came back to why was Mr. McKeague always protecting the complainant. Mr. Currie admitted that he, Wells and Rose participated in the rumour. He could not offer much by way of context, other than the backdrop was the perceived favouritism of Mr. McKeague toward the complainant. Mr. Currie agreed that all three of them — he, Wells and Rose — saw the complainant as an agent gaining favours through sex. His "impression" was it did not persist in the office.

75Ms. Laughton, a witness on behalf of the respondents, testified that Mr. Rose told her about the rumour, unsolicited, within a month of her start date in 2001. Ms. Laughton said that she viewed it as disparaging to the complainant.

76Michel Leonard testified that he first learned about the rumour in 1999 and then was asked about [it] in January 2002 from an employee in Montreal who asked him if it was true. Mr. Leonard acknowledged that he thought they were having an affair at one point too. In a subsequent meeting involving the complainant in January 2003 described below Mr. Leonard commented to her that he did not want to solve her problems as he does not want the "rumour". Mr. Leonard acknowledged that the rumour could have affected the agents' view of the complainant and that it gave the impression that she was taking advantage of her manager through sex.

77Ms. Papillon stated that she thought Mr. Wells told her about the rumour while she was attending an annual Staubach event in San Antonio, Texas, in the fall of 2000. She states that there were about 15 people present from Staubach offices in Canada and the United States. There was a reference made about Ms. Papillon going to the Alamo with Mr. McKeague, and Mr. Wells joked that the complainant was having an affair with Mr. McKeague and not Ms. Papillon. Everyone laughed. Ms. Papillon stated that when she was back in the Toronto office she asked Mr. McKeague directly whether or not he was having an affair with the complainant, which he denied. Ms. Papillon stated that it "absolutely" would reflect [on] how people would relate to you.

78Karine Mageren, a lease manager, said that she found out about the rumour in 1999.

79Daniel Shlagbaum, a junior agent employed from late 2002 to 2003 said that he found out about the rumour at a party (before he started) from someone who had heard from Mr. Bronetto and that he and Mr. Rose discussed it. Mr. Shlagbaum stated that while it was in his mind when he met the complainant, it did not affect his perception of her.

80Ryan Gill, a junior agent employed from December 2001 to August 2002, said that Mr. Rose told him the complainant was sleeping with Mr. McKeague to get leads and that it was discussed in the office including Mr. Wells. He states that it arose in conversation when they wanted him to work with them as opposed to the complainant and that, in his view, it impacted on her.

81The rumour was also discussed among support staff. For example, Stephanie Currie testified that people were saying that there had to be something going on and that she heard more about it when the office became full. Lauren Brooks said that the rumour was "always there" during her employment (which was from 2001 to 2003) and was discussed among support staff. Ms. Thompson* stated that, after she stopped working for the complainant in November 2002, Mr. Rose asked her if the complainant was having an affair.

82Based on this evidence, I make the following findings. I am satisfied that the rumour was a persisting feature throughout the complainant's employment and was discussed by most, if not all employees, on occasion, and at some times with more regularity. I accept the evidence of Mr. Currie that he, Rose and Wells participated in the rumour. I also find that Mr. Rose perpetuated the rumour by disclosing it to Ms. Laughton and Mr. McClatchey.

83As for the impact, I accept the evidence that a sexual rumour of this nature disparaged the complainant. I have difficulty finding the evidence of the agents credible to the extent it was suggested that the impact had no negative impact on their view of her. Based on the competitive nature of the workplace, one where management provides referrals, it makes sense that a preferential relationship with the owner/manager would not be positively received as it would be giving an advantage for reasons unrelated to merit. Even the evidence of agents suggesting that it came up when Mr. McKeague was supporting the complainant tends to support a negative impact since the underlying message is that there could not be an otherwise legitimate reason for supporting the complainant.

84Further, I find that the rumour was directly related to the complainant's gender. In this highly competitive workplace, the agents demeaned the complainant in a manner directly related to her gender.

Allegations of the Use of Offensive Language

85The evidence reflects that a number of negative names or other references were made about the complainant in the workplace. With a few exceptions, these names or references were not used in her presence but were expressed to some degree among agents and support staff depending on the specific "name". There was limited context given in the evidence other than in general terms.

86The complainant testified that Mr. Bronetto called her a "crazy bitch" during an argument that took place in the presence of Mr. McKeague. Mr. Bronetto was not called as a witness and, although Mr. McKeague said that he did not recall the comment, he went on to state that he had "no doubt" that Mr. Bronetto said it.

87Ms. Brooks testified the complainant was called a bitch, psycho, "Farrasite" and crazy on a daily basis mainly by Mr. Rose and Mr. Wells. Ms. Brooks stated that the name calling would be raised in conversation in the office. She acknowledged that she and Ms. Thomson, the complainant's assistant for part of her employment, called the complainant a bitch and crazy when she was having a bad day. She did not recall Mr. Rose or Mr. Wells using derogatory terms to refer to any other members of staff.

88Ms. Thomson's evidence was similar. She stated that Mr. Rose and Mr. Wells called Ms. Farris dumb, stupid, bitch, Farrasite and the acronym "HSC" which she stated ended in the "c" word (i.e. cunt). Ms. Thomson specifically recalled Mr. Wells referring to Ms. Farris as a "cunt" on a couple of occasions and as a "dumb waitress" at other times. Ms. Thomson stated that Mr. Rose would say "have you seen 'Farrasite' today".

89In cross-examination, Ms. Thomson acknowledged that she had not mentioned "HSC" or "cunt" in her statement to the Commission.

90Both Ms. Thompson and Ms. Brooks said that they complained to Mr. McKeague, stating that they did not want to work in an environment where all these negative things were said about the complainant, although their recall of the details of the complaint was somewhat limited.

91Mr. Rose admitted using many of the terms about the complainant. Mr. Rose stated that the terms would be used when the complainant acted badly and "we might call her a bitch. Say she is crazy". He stated that he doesn't recall using the term "psycho" but he's sure it was used. Mr. Rose denied using the term "dumb" in relation to the complainant as he does not believe that she is dumb. Mr. Rose admitted that the consultants used these names behind the complainant's back and that they had a good time at her expense.

92Mr. Rose stated that he was fairly certain "HSC" was coined by Mr. Currie and stood for "hateful spiteful cunt". He felt it was very funny. While initially equivocal about whether or not he used the term, he later admitted that it was used to elicit a laugh with Mr. Currie. He stated that he assumed Mr. Wells used it as well. He states that the complainant's behaviour created these acronyms and that most of the terms used had a "short shelf life".

93Mr. Wells denied using most of the names/references himself, although he stated that other colleagues used them. He recalls hearing the term "HSC" which he states was coined by either Mr. Currie or Mr. Bronetto (he suspects the latter). The only term Mr. Wells admitted using once or twice was "Farrasite" which he states was in response to the complainant's parasitic behaviour. He states that he may also have referred to her behaviour as "that's crazy".

94Mr. Currie denied coming up with the term "HSC" and emphatically denied ever using it in his life.

95Mr. Shlagbaum heard the term "bitch" and "Farrasite" being used about the complainant by Mr. Rose and Mr. Wells.

96Ms. Papillon and Ms. Litavski testified that the complainant called each of them a bitch. This evidence was not put to the complainant during her testimony. However, in the tape of the termination meeting, the complainant is heard calling Mr. Rose an "S.O.B."

97Mr. McKeague testified that he did not hear the alleged terms being used. He agreed that if terms such as "stupid", "HSC" and "Farrasite" were used, the underlying negativity implicit in them could have been displayed to her in other ways such as not wanting to work with her. He seemed to take a different view of the term "bitch" which he stated was not necessarily a sexist term as it has more general usage as a swear word. He did state that in his view, while inappropriate, it would not result in a strike (or reprimand) under the Code of Conduct and expressed that some conduct may justify being called a "bitch".

98Mr. Leonard agreed that the use of the terms could create a hostile environment for the complainant.

99Having regard to the evidence, I make the following findings. I find that the complainant was called "bitch", "Farrasite", "psycho" and "crazy" by agents among themselves and in the office in the presence of support staff. I further find that the complainant was called "HSC" by agents among themselves.

100To the extent Ms. Thompson suggested that Mr. Wells used the term "cunt" to describe the complainant in her presence, I do not find it credible. I find it problematic that it was not included in Ms. Thompson's signed statement to the Commission, given that the term is egregious.

Allegations about Other Comments/Conduct Alleged to Be of a Sexual Nature

101There were a number of other examples of conduct alleged to be of a sexual nature, some of which were acknowledged and others denied. To the extent the conduct relates to the complainant, I summarize the allegations and set out my findings below. I also summarize the evidence concerning the allegation that the complainant herself participated in sexualized emails.

Alleged Incidents/Comments by David Rose

102The following incidents/comments were attributed to Mr. Rose. The complainant testified that in 2001, while working on the Novell mandate with Mr. Rose, she attended a site and asked about checking the access to parking. Mr. Rose responded by suggesting that she was just taking him to the back because she wanted to have sex with him. The complainant stated that she was offended by this comment but did not complain to Mr. McKeague about it because she had to pick her "spots". Mr. Rose denied the incident, although he expressed the view that he can be politically incorrect with family and friends "but certainly not in the workplace".

103Two witnesses testified that Mr. Rose reported the complainant was a "real tiger in bed". Ms. Laughton stated that Mr. Rose came into her office and told her this. Ms. Thomson stated that she heard it second-hand from Ms. Donnelly, another support staff worker, who stated that Mr. Rose had told her this. Mr. McKeague testified that he was aware of the comment being made although he heard it third-hand. Mr. Rose denied the comment.

104Ms. Thomson said that Mr. Rose also told her the complainant was having an affair with an agent in New York.

105Ms. Thomson also testified that when the complainant went into the termination meeting with Mr. McKeague, Mr. Rose commented that he could hear the "inflatable mattress".

106The complainant testified that in 2003, she had a discussion with Mr. Rose about a contract he had worked on and that he indicated that the winning group had a woman who was tight with a board member. When she asked for an explanation, Mr. Rose said "getting or giving some on the side" while making a hand gesture suggesting intercourse. The complainant told Mr. Rose the comment was not appropriate and reported it to Mr. McKeague. Mr. McKeague confirmed this and indicated that he spoke to Mr. Rose about it. Mr. Rose denied that he made the comment in his testimony.

107On the following day, Mr. Rose said hello to the complainant in the hallway and then, as she proceeded down the hall, turned around and said "you know that wasn't a sexual hello" and laughed. The complainant reported the comment to Mr. McKeague. Mr. Rose stated that he did not recall the comment.

108I accept that Mr. Rose made the comments attributed to him. I did not find Mr. Rose's denials credible. The statements and comments are consistent with a sexualization of women in the workplace, the tone and content is similar to the rumour about the complainant and Mr. McKeague which I have found Mr. Rose perpetuated, and more than one person heard a number of the comments.

Comments Attributed to Michel Leonard

109The complainant testified about several comments attributed to Mr. Leonard, which he acknowledged.

110Following a return from a vacation in Italy she stated that she felt rejuvenated and Mr. Leonard commented that the "sex must have been good". The complainant stated that she felt it was very demoralizing.

111The complainant also states that following her individual sessions with Dr. Klarreich, she received a bill for about $1,200. When she raised her concerns about paying for this service (given her view that it was to assist her in dealing with the complaints she made in the fall), Mr. Leonard was initially unreceptive using the following analogy: if a woman goes to a bar and a man offers to pay for one drink and then they stay all night, that does not mean that the man should pay for all drinks. The complainant felt very offended by the analogy.

112On another occasion, while in a meeting with Mr. Leonard and a consultant from Deloitte, Mr. Leonard made a comment that an employee in Montreal was his mistress, which Mr. Leonard stated he said jokingly.

Alleged Incidents/Conduct of Jeff Wells

113The complainant testified that while in a sales meeting in 2001 with the other agents, while she was talking, Mr. Wells continually stared at her chest. She said she tried to move and at one point stopped talking. She states that she got distracted and that there was smirking and giggling. She felt very dirty and violated and over Christmas she told her parents about it and asked if that was sexual harassment.

114Mr. Wells denied the incident and none of the other agents had any other recollection of it.

115I do not find there is sufficient evidence for me to find that this single incident occurred or at least occurred in such a manner that it would lead to a finding of liability. On one hand I accept that the complainant was upset and did include this allegation when she attended at the hospital in November 2001. However, given that the allegation is one of staring (where no attention was drawn to it at the time either by raising it with Mr. Wells in the meeting or with the corporate respondent although she was generally vocal in her concerns), I do not find the allegation — staring in a sexually intimidating way — is established.

116A similar allegation was made by Ms. Thomson about Mr. Wells staring at the complainant's legs while she was in reception. For similar reasons I do not find that there is sufficient evidence to find this incident occurred.

Complainant's Circulation of Emails

117The complainant received and sent certain emails which were of a sexualized nature on her email address at work, although most were exchanged between the complainant and her boyfriend or female friends from outside the office. On one occasion, the complainant forwarded an email to Mr. McKeague; she states because he asked her to when he saw her laughing at her screen.

118The respondents rely on this evidence for the purpose of challenging the impact of the conduct in this case. However, ultimately, for the conduct that I find leads to a violation of the Code, I do not find this evidence diminishes my view of events. I find that the sexual rumour and negative name-calling directed at the complainant is qualitatively different from the nature of this evidence.

Allegations Related to Other Women in the Office

119Ms. Thompson testified that a number of comments were made about the dress of female employees. She states that Mr. Rose would say that Ms. Donnelly was only good for wearing T-shirts and Mr. Rose and Mr. Wells joked about Ms. Laughton's dress. She also states that Mr. Wells said that another junior agent would not do well because she wasn't that pretty and her figure was not great.

120Mr. Rose agreed that Mr. Wells definitely made jokes about Ms. Laughton's clothing and Mr. Wells himself conceded this.

Allegations Related to Outside Vendors

121Ms. Thomson stated that Mr. Wells told her that he warned John Gibbs, an employee with the U.S. TSC in the Staubach Education Municipal Services ("SEMS) practice group there, to not work with the complainant. Mr. Wells denied this. Mr. Gibbs testified and also denied it; in fact he suggested that the complainant had asked him to "please" not discuss the SEMS work with Mr. Wells.

122The complainant testified that Jeff Truman, a vendor, told her Mr. Wells had asked that he not work with her. Mr. Wells denied doing so and Mr. Truman was not called as a witness.

123I do not find that the complainant has met her onus to establish these allegations.

Allegations of Other Negative Treatment

124In October 2001, Mr. Rose came to the complainant's office, stood at her door and stated that the "hate parade" had sent him to find out why she got to go to a particular business meeting. Mr. Rose was chuckling and laughing in a demeaning manner when he said this. Mr. Rose stated that he was attempting to stay neutral since, when he joined the firm, there seemed to be two camps: Bronetto, Currie and Wells in one and the complainant in the other.

125Also in 2001, Mr. Rose told the complainant that she was skating on thin ice and was on her way out. She was very upset by this and contacted Mr. McKeague, who assured her that her position was not at risk. Mr. Rose did not challenge this evidence in any significant way other than to state that he had no authority to terminate anyone and was just saying this to get the complainant out of his office.

126Coincidentally, Mr. Rose made a similar statement to Ms. Laughton, referring to her deficit position when stating that it was just a matter of time until she would be out of Staubach. Ms. Laughton complained to Mr. McKeague and he spoke to Mr. Rose about it. Mr. Rose did not recall the full detail of what had happened, but indicated that he was trying to "commiserate" with Ms. Laughton and feels badly about what happened.

127In June 2001, the complainant raised the issue of her work relationship directly with Mr. Wells. She confronted Mr. Wells on his silent treatment and he was not receptive. Among other things, he stated that he did not have to like her as it was not in his contract and they did not click; he intimated that he did not like how she got her business; he stated that he would not work with her; everybody walks on eggshells around her; and indicated that he wanted to keep things on a superficial level. Mr. Wells' account was less detailed, although he stated that the complainant said that he could not exclude her and she was quite incensed by his reaction that he would not work with her.

128On another occasion, the complainant came into Mr. Wells' office and he motioned her backwards toward the door and then shut it on her which made the complainant feel that he did not like her. Mr. Wells stated that he was on the telephone at the time and that is why he gestured for the complainant to move out of his office.

Issues with Support Staff

129In the period 2002 to early 2003, the complainant had a number of interactions or incidents involving support staff. These incidents are relied on by the respondents to demonstrate the difficulties she had in relating to staff in the workplace. The Commission relies on certain of the incidents to demonstrate that the respondents' reaction to them further poisoned the work environment.

130I heard evidence from three employees in the Toronto office who worked in the support staff or administrative staff category in this period: Ms. Thompson, who worked as the complainant's administrative support in 2002; Ms. Brooks, who worked as a receptionist from 2001 to early 2003; and Ms. Litavski, who worked as an administrative assistant between 2001 and 2003.

131According to Ms. Thompson, Ms. Litavski informed her that she would be working for someone who was a very "difficult person" and someone who was very demanding. She called the complainant a "bitch", evidence Ms. Litavski did not dispute, and which she acknowledged may not have been a good way to introduce someone.

132Ms. Thompson testified that she had a good working relationship with the complainant and that others in the office expressed surprise at this. However, as time went on, Ms. Thompson described that she began to feel pressured by the complainant and was finding the environment difficult. She states that she became influenced by the negative things said about the complainant such as she "walked too hard" and she was too aggressive. She also states that the complainant became less outgoing and she took it personally.

133In November 2002, while the complainant was out of town, she was calling Ms. Thompson frequently and asking her for things. After one of the calls, Ms. Thompson was frustrated and slammed down the phone and yelled at it to leave her alone. Ms. Litavski appeared to overhear and went into Mr. McKeague's office. Subsequently, Ms. Thompson was called in to Mr. McKeague's office and during the ensuing discussion was asked if she wanted a reassignment. She indicated she did and was eventually asked by Ms. Litavski to write a letter to confirm her request.

134Ms. Thompson obliged but was told by Ms. Litavski that the original draft was not "firm enough" and she needed to be "meaner", which led to [the] letter being rewritten to include that she was spoken to rudely and with little respect, and that she was "afraid" to come to work. According to Ms. Thompson these additions came from Ms. Litavski.

135I also heard from Ms. Litavski about this letter. Ms. Litavski acknowledged that she originally received a two-line letter from Ms. Thompson asking to be moved for personal reasons but stated that she needed more detail. She denied telling Ms. Thompson what to write.

136I prefer the evidence of Ms. Thompson. I had general concerns with the evidence of Ms. Litavski. However, even apart from my general reservation, it seems reasonable in the circumstances that if someone is asking that a letter be re-written they would also make at least some suggestions about the content and Ms. Litavski claims to have made none. It is clear that Ms. Thompson wanted to be reassigned, but I accept her evidence that she was encouraged to include specific content in the letter consistent with the above. I also accept Ms. Thompson's explanation that she did so because she assumed that Mr. McKeague requested it and she was relatively young at the time.

137In or around the same time as the reassignment of Ms. Thompson, there was an incident involving the complainant and staff in Montreal. The complainant had called the Montreal office trying to reach Ms. Mageren. The receptionist advised that Ms. Mageren was in a meeting so the complainant asked to speak to her assistant. The receptionist put her on hold and then came back on saying the assistant did not want to speak to her either. The complainant states that this resulted in her speaking "sternly" to the receptionist and then later to the assistant.

138Ms. Papillon became involved and emailed Mr. McKeague stating that she had two employees in her office crying because of the complainant and "didn't she learn in her therapy that yelling at people was not the solution". Subsequently, Ms. Mageren also emailed the complainant complaining about her behaviour and her treatment of staff in this incident. Ms. Mageren stated that her assistant's eyes were wet so it was obvious something had happened and she assumed there had been a lack of respect.

139Ultimately, this issue was addressed in a meeting with Mr. McKeague, Ms. Mageren and the complainant. According to Ms. Mageren, Mr. McKeague's reaction was that Ms. Mageren was the trouble and she felt let down by Staubach and considered resigning.

140Balanced against the incident summarized above, Ms. Mageren testified that she dealt with the complainant around 10 times a month and that most of her interactions were just fine as they were just "business".

141On January 17, 2003, Ms. Papillon received a telephone call from Ms. Litavski to the effect that she had four support staff from the Toronto office who wanted to quit because of the complainant. While Ms. Papillon did not recall that she was told what had occurred, she decided to send an email to the support staff. She drafted an email, printed it off and then took it to Mr. Leonard for review. She states that Mr. Leonard added one line regarding the Code of Conduct and gave her permission to send it.

142The email sent to Ms. Litavski and three support staff and copied to the complainant, Mr. McKeague and Mr. Leonard, stated as follows:

I've been made aware of another crisis involving Kathrine. We all know about the yelling, the name calling, the door slamming. . . it is not a surprise and it has been going on for many years.

I just want you to know, Chris, Lauren, Sarah and Tamara that you're all highly considered employees and the last thing we want is for you to go.

I also want you to know that working in an environment that you dislike is not a good thing.

If Kathrine yells at you, please yell back. . . You don't have to take this. . .

If Kathrine makes you feel small, uncomfortable. . . make HER feel smaller, make HER feel left out.

If Kathrine slams the door. . . Open it and slam it harder. . .

I personally have not respect for people treating other human being like this.

As for you Kathrine, I strongly suggest that you change your attitude. I know for a fact that this has been told to you on many occasions but it seems to have failed. Also, it contravenes with The Staubach Canada Code of Conduct that you have signed, along with your co-workers but you probably don't even care.

I've had enough. . . Everybody has had enough

143I heard from Ms. Litavski who had made the call to Ms. Papillon. Ms. Litavski's evidence was confusing and ultimately I did not find it reliable. Initially, Ms. Litavski was insistent that the precipitating event was an incident that occurred between the complainant and Ms. Donnelly, one of the support staff, several weeks after this date. She also was insistent that it was three staff who were threatening to quit. However, her notes taken at the time only mention Ms. Donnelly — the allegation being that the complainant was rude to Ms. Donnelly when she asked for clarification on a document and that if she was treated like this any further she would rather not work there. Neither Ms. Thompson nor Ms. Brooks testified that this incident occurred (where they threatened to quit on this date) and Ms. Donnelly did not testify.

144Upon her receipt of the email, the complainant asked for a meeting with Dr. Klarreich acting as a mediator. Mr. McKeague and Mr. Leonard agreed and, on January 30, 2003, a meeting was held with the two managers, the complainant and Dr. Klarreich. Ms. Litavski was also present for part of the meeting, but Ms. Papillon did not attend.

145The complainant secretly tape recorded the meeting and the tape was played for me at the hearing.

146What does the tape recording reveal? While the respondents suggest the focus of the meeting was to discuss the email and the complainant, this is not the impression left from the tape recording. Instead, I find that the focus of the meeting was almost entirely on the complainant and her alleged inappropriate behaviour that may have led to the email as well as her behaviour more generally.

147During the meeting, Ms. Litavski identifies various concerns identified by support staff that had not previously been shared with the complainant. It appears that Ms. Donnelly (who replaced Ms. Thompson as her assistant) was asked to keep a log of incidents involving the complainant. On the day that led to the email being sent the precipitating incident is that the complainant is alleged to have "yelled" at Ms. Donnelly and sworn at her by referring to the time she should send something as "TODAY FOR F*^&'S SAKE". Ms. Litavski outlines this issue and others in the meeting. When cross-examined, Ms. Litavski agreed that many of the other complaints contained in the log were trivial (for example on December 19, the complaint is that she asked the complainant who her clients were, and the response was "They are in the Q drive").

148In the meeting the complainant raises her concerns about the sexual rumour. In response, Mr. Leonard blames the rumour on Mr. McKeague's defence of the complainant. Elsewhere in the tape recording, Mr. Leonard states that the complainant is the cause of the problem and if there is not a change then he's ready to "write it off", implying that she will be let go. When the complainant asks for management to become involved and provide feedback, Mr. Leonard states that it is her problem and he doesn't want the "rumour" and the suggestion that he is "in cahoots" with her.

149The complainant testified that after the meeting she was trembling and that she felt overwhelmed and quite stunned. She states that she called her mother that night, crying and feeling enormous panic. She states she felt completely isolated and alone.

150With respect to Ms. Litavski's reaction, Ms. Thompson alleged that when she returned to the workplace she told support staff that the complainant was "ripped a new asshole". While Ms. Litavski denied this in her evidence, stating that it was Ms. Donnelly who asked if the complainant was ripped a new asshole, she agreed that she laughed and answered yes. Regardless of whether she made the statement or agreed to it, I find that the message being communicated to staff was that it was acceptable to disparage the complainant.

151Apart from this meeting, nothing was done to address the content of the email.

The Relationship with Mr. McKeague 2002–2003

152The complainant testified that following the disclosure of the rumour in 2002, Mr. McKeague began to pull away from her, citing that they stopped having lunch. Mr. McKeague denied there was a change, stating that he felt closer in a way because they had both been falsely accused. Mr. McKeague did state that he might have considered the optics of some of his actions that he may not have considered in the past, such as keeping the door open to his office if the complainant came in.

153Various other witnesses testified that they observed a difference in their relationship although the evidence was limited. For example, Ms. Brooks said that the two used to go out for coffee and sit and chat and that stopped. She observed Mr. McKeague distancing himself around late 2002 which was when the support staff had complained about the negative things said about the complainant by the agents. Mr. Currie also noticed a change, which he said was less protectionism.

Other Evidence

154I heard evidence of witnesses stating that they had not observed or experienced gender discrimination in the workplace. While this evidence was often received without any objection, I give no weight to the answers to this line of questioning. To the extent it is character evidence on the part of the respondents it is not admissible and to the extent it is "opinion" evidence, none of the witnesses were properly qualified to offer it. Ultimately, the question of whether or not there is gender discrimination is within the purview of the issues I am determining.

155I have the same view of some of the evidence elicited about whether or not the workplace was poisoned to the extent it consisted of opinions. In the period May to June 2003, the complainant had several interactions with other employees where perceptions of the work environment were shared. In April 2003, Ms. Litavski acknowledged that the complainant had managed to survive in a hostile and uncooperative environment.

156On June 2, 2003, the complainant had a discussion with Ms. Laughton and Ms. Litavski about the work environment for women. The complainant also taped this discussion and I heard the tape in the hearing. While the impression left by the tape is that the participants were in agreement about the negativity in the workplace (an impression that the witnesses tried to depart from in the hearing), I do not find it necessary to review the opinions expressed in any detail. As with the opinions expressed on whether there is gender discrimination, I find that it is for the Tribunal to determine whether or not the work environment is poisoned.

157I also heard evidence about Mr. Wells' licence status during his employment. I did not find that evidence to be germane to the question of whether or not the complainant was discriminated against and subjected to a poisoned work environment.

158Finally, I heard evidence about two incidents involving female agents that the parties relied on for different purposes.

159Ms. Laughton testified that she invited the complainant to attend a meeting with her and others about a potential work opportunity in North Bay. Following the meeting, Ms. Laughton discovered that the complainant had taken steps to put her name forward as the lead agent in the database retained by Staubach. The complainant described the situation differently stating that the opportunity was in an area for which she was responsible: SEMS, a new business area that Staubach was trying to develop where Staubach would assist with lease and buy-back arrangements for public sector entities. Mr. McKeague viewed this incident as the one time the complainant was attempting to take an account from someone else.

160In a second example, I heard evidence about another issue between the complainant and a junior agent, who was female. An issue arose as to whether the complainant or the junior agent had the "higher" contact so that, if a commission was forthcoming, they would be remunerated. The issue went to arbitration and a sharing arrangement was implemented.

161The Commission relies on this incident as indicative of the respondents being harsh with the complainant since they allege that this was the first arbitration that occurred. The respondents dispute this, stating there had been an arbitration in Montreal. Further, they suggest that it is [sic] shows how the complainant did not want to compromise (since a sharing arrangement had been proposed earlier), although Mr. McKeague seemed to acknowledge that on strict rules, the complainant had the highest and best contact.

162Having regard to my findings below, I do not find that I need to make any determination of either of those incidents.

WAS THERE A POISONED WORK ENVIRONMENT OR OTHER DISCRIMINATION?

163I find that the complainant was subjected to a poisoned work environment or otherwise discriminated against on the basis of sex and gender contrary to ss. 5, 7(2) and 9 of the Code. While the parties referred to extensive law on these legal issues, which I have considered, I find that ultimately, this is a case that turns on the facts. My factual findings readily support the conclusion that the complainant's sex/gender was a factor in the respondents' treatment of her and she was subjected to a poisoned work environment.

164I find that the other agents did not like or want to work with the complainant. While the complainant may not have established that the specific incidents of exclusion support her claim, there was uncontested evidence that the agents expressed directly their unwillingness to work with her (Mr. Wells) and indirectly through threatening her job (Mr. Rose) or spreading a rumour about her (Mr. Bronetto). Even the respondents' witness Mr. Currie characterized Mr. Rose and Mr. Wells as being "hard on Ms. Farris". While obviously the Code does not require that employees like or want to work together, one of the ways in which the agents in this workplace expressed their dislike of the complainant was to refer to her in language which disparaged her on the basis of her sex, most notably "bitch" (or variations of this word) and "HSC". While some of the terms used about the complainant may not be stereotypically gendered, I do not find it necessary to consider whether all the terms are gendered. It is sufficient that some of the terms were.

165While one comment will not lead to finding of a poisoned work environment, in this case I find that there were a sufficient number of comments made among agents, including the HSC comment which I find particularly demeaning and vexatious, to support a finding of liability. These comments, when coupled with the sexual rumour discussed and perpetuated internally, and on occasion, discussed externally, resulted in a poisoned work environment for the complainant based on her gender.

DID STAUBACH'S RESPONSE TO THE COMPLAINTS VIOLATE THE CODE?

166In the Tribunal's jurisprudence it is well established that the right to be free from discrimination in employment includes a duty not to condone or further a discriminatory act and a duty on an employer to take reasonable steps to investigate a complaint of discrimination. In this case the Commission argues that the complainant regularly took steps to have her concerns addressed and that the respondent employer completely failed to meet its obligation, with the result that the respondent employer was complicit in permitting the poisoned workplace to grow and flourish. The respondents dispute this, arguing that for the most part, the complainant never framed her concerns as human rights issues and, in any event, the corporate respondent's response was reasonable in the circumstances.

167The starting point for evaluating Staubach's actions is to review the evidence as to what concerns were identified and what steps were taken throughout to respond to the concerns.

A Summary of the Complaints and the Response

168Beginning with the events in the fall of 2001, the complainant began to complain about the conduct of her four male colleagues. In particular:

i. In or about June/July 2001, she spoke to an employee in the Montreal office about her feeling of exclusion. The employee indicated that the complainant came across as a "bull in a china shop" and suggested that she raise the issue directly with the other agents. The complainant did and Mr. Wells' response is described above;

ii. On October 15, 2001, the complainant met with Mr. McKeague and Mr. Leonard and raised the conduct of her male colleagues and the question of why they were being hostile to her; she queried whether she was a threat to them; and expressed the concern that as new employees joined they would follow the momentum to go against her (referring to Mr. Rose's statement that he had to side with them or they were going to exclude him also);

iii. And on November 5, 2001, the complainant emailed Mr. McKeague and Mr. Leonard again about her perception of hostility. In this email, her comments included her characterization of the issue as this "collective 'movement' of hostility against me"; she mentioned the reference made to the group as the "hate parade"; referred to "this poisoned work environment"; and Mr. Rose's threats to her about her employment.

169In response to these events, Staubach retained Dr. Klarreich. Dr. Klarreich interviewed Mr. Leonard and Mr. McKeague and all of the agents as well as the office manager. In framing the issue for Dr. Klarreich, the notes reflect that there is a "hate Kathrine" gang and appear to identify that the conflict is between the complainant on the one hand and Mr. Wells and Mr. Bronetto on the other. At the end of this "investigation", Dr. Klarreich recommended a Code of Conduct.

170In his notes of the interviews with the complainant, there is reference to her feeling persecuted and harassed and that she has "grounds to go to Human Rights". In the hearing Dr. Klarreich stated that this was the complainant's view and not his. While I did not find this assertion credible given that Dr. Klarreich had added notes suggesting these were the complainant's views shortly before he testified (which was some eight years after the fact), what is significant for my decision is that there is no evidence that Dr. Klarreich ever communicated this to the corporate respondent at the relevant time. Instead the briefing notes for his recommendations for Staubach describe the problems with the environment generally (including that it is abusive, undermining, and back-stabbing without reference to any particular person) and the proposed solution which includes the development of the Code of Conduct.

171The complainant's next main "concern" was the provision of a report from the hospital on November 30, 2001. At the annual meeting in Montreal, she experienced what she described as a panic attack when she perceived that she was not praised in the same manner as some of the other agents. She went to the hospital and was examined in emergency. Upon her discharge the physician indicated as her "impression" that the complainant had had a panic attack and "work relationship conflicts". In addition, the report described the complainant's self report as follows:

. . . harassment at work by "4 male co-workers who have launched what they call the "Hate Parade" against her. She describes humiliation (intimating she would unethical things) sexual intimidation (staring at her breasts) & most recently threats & false accusations attempting to get her fired. About 1 mo ago, mgmt brought in a [ ] consultant to try to fix the problem but nothing concrete has been done acc. to pt. In this atmosphere pt describes several wks of [upward arrow] tension, irritability, getting up @ 5 a.m. to go work before they get there (avoidance), crying. . . even once suicidal thoughts, mild social withdrawal.

172After leaving the hospital and returning to the meeting, the complainant gave Mr. McKeague a copy of the report saying that she was giving this to him as a "friend" and that this was serious. She did attend the party that evening. Mr. McKeague stated the complainant told him that she was fine and, although he glanced at the report, he did not recall what the report stated until he gave his testimony. Elsewhere in his evidence, Mr. McKeague stated that he viewed this as "personal".

173The complainant's third concern was the report of the rumour disclosed to her by the third-party vendor. As noted above, in response, Mr. McKeague gave Mr. Bronetto two strikes under the Code of Conduct. Mr. McKeague stated that everyone was aware of the severe reprimand given to Mr. Bronetto as he was spoken to in a loud and animated meeting in the boardroom. However, none of the witnesses seemed aware of the details concerning the reprimand. For example, Mr. Wells thought he did not learn about the sexual rumour being disclosed by Mr. Bronetto until the litigation started. Notably, in the Montreal office, Mr. Leonard raised the issue in a staff meeting and cautioned that staff should refrain from talking about the rumour.

174The evidence also reflects the complainant raising on various occasions her concerns about comments and conduct of her colleagues. For example, she complained about Mr. Rose's comments about a woman being tight with the board and the comment that a hello was not a "sexual hello". In some instances, Mr. McKeague spoke to Mr. Rose but it is apparent from the evidence that Mr. McKeague did not view the complaint being made as justifying a further response, although he acknowledged in his evidence that he may have been "remiss".

175Further, on June 2, 2003, near the end of her employment, in a meeting with another agent, Ms. Laughton and the office manager, Ms. Litavski, there was a discussion of the poisoned environment. In this meeting, which the complainant recorded, Ms. Litavski looked up the sexual harassment policy for TSC (the U.S. company) and the conversation included discussion of discrimination and the need to call the Commission. Ms. Litavski's evidence was she did not report this discussion to Mr. McKeague and had only acted supportive of the views being expressed.

176Finally, in her termination meeting on June 18, 2003, the complainant advised Mr. McKeague that she had applied to the Commission, to which Mr. McKeague responded that he would "have to deal with that". She also complained about the failure to provide her with an environment not subject to sexual harassment, which had caused her stress. Mr. McKeague stated that he heard her but that there was nothing he could do about that.

177Apart from the complainant's articulation of her concerns as referenced above, I heard evidence that the support staff complained about the constant negativity towards her emanating from the male agents to Mr. McKeague, although the details of what was complained about were limited.

Did Staubach act reasonably?

178In Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 [reported 53 C.H.R.R. D/262] at § 59, the Tribunal set out the following criteria whereby the reasonableness and adequacy of the respondents' response will be assessed:

(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?

179The Tribunal also stated at § 60:

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection.

180In determining what Staubach did in this case, I find it appropriate to look at the totality of the circumstances. When I do, I find that the conduct was not reasonable in the circumstances.

181The evidence does not reflect a workplace where there is general awareness of human rights issues. Staubach did not have a human rights policy, although it appears there was access to a policy of the related American company through intranet.

182It is fair to say that initially, based on what information they had, the corporate respondent approached the concerns in a reasonable manner. The complainant felt ostracized and they brought in a psychologist with experience in workplace conflicts. However, as the complaints continued to be made and the information received grew, it does not seem reasonable to have responded with the limited steps taken. By December 2001, Staubach was aware that the complainant was having a physical reaction to her perception of "harassment" and was complaining, among other things, of sexual intimidation. Within a month or so, the corporate respondent learned that one of the agents involved in conflict with the complainant was spreading a sexual rumour and telling a vendor that the other agents would not work with that vendor if she worked with the complainant.

183This puts a new perspective on the complaint of being excluded and ostracized. While the response of disciplining Mr. Bronetto was appropriate, in the Toronto office there was no further step taken to address the implications of his behaviour on the complainant. By contrast, in the Montreal office, a more public reproach occurred despite the fact the rumour more directly impacted on the complainant in the Toronto office.

184I find that the failure to respond further contributed to the exacerbation of a poisoned work environment. Starting in 2002, the evidence reflects that the workplace got worse and not better for the complainant.

185I find that the respondents' handling of the January email and the subsequent meeting further exacerbated the poisoned work environment. While I am not convinced that the decision to send such an email in the first instance was itself discriminatory, I find that the handling of the situation after that point problematic. The clear evidence about the meeting was that it was one-sided and the complainant's efforts to identify any different perspective of events, including how she was treated, were disregarded.

186Further, during the termination meeting, the complainant expressly raised the issue of the sexual harassment and the problems with her environment and indicated that she had filed with the Commission. Not only did Mr. McKeague elect to not reconsider the decision but he made it clear that in his view there was nothing he could do. At a minimum, the corporate respondent should have considered whether it was appropriate to reconsider its decision having regard to the claim being made.

187I do not find any liability for the failure to investigate the allegations made by the complainant about referrals. I do not find that the complainant ever framed these concerns as being gender-based.

WAS THE COMPLAINANT'S EMPLOYMENT TERMINATED FOR CODE-RELATED REASONS?

188The Commission argues that the complainant's termination must be examined in the context of the poisoned work environment in which she worked. The Commission argues that by January 2003, her work environment was becoming increasingly hostile and that there was a collective attitude in the workplace that condoned and encouraged the ill treatment of her. The Commission relies on reprisal as an additional ground of discrimination.

189The period following the January 30, 2003, meeting up to the termination on June 18, 2003, was relatively uneventful. There were no specific issues with other agents.

190In addition, while Mr. Leonard suggested that there was no change in the complainant's behaviour (still yelling, swearing, no respect for people) he was unable to point to a specific incident. In fact the only incident that appears to be notable in the period after the January meeting involved an allegation that Ms. Donnelly "hit" the complainant. I did not hear from Ms. Donnelly in the hearing. While I did hear from Ms. Litavski, who described the event differently, she acknowledged that Ms. Donnelly apologized. I do not find it necessary to resolve this issue.

191Shortly before her termination, the complainant was working late one night and Mr. Wells walked into her office without knocking. The complainant states that she asked Mr. Wells if she could help him and he then left shortly after. Mr. Wells states that he heard something in the complainant's office and went to check. Mr. Wells agrees he called Mr. Leonard to explain the situation. He explained he did so in the event there was some complaint about him. The Commission relies on this incident to speculate that Mr. Wells and Mr. Leonard discussed the idea of terminating the complainant that night.

192On June 18, 2003, the complainant's employment was terminated in a meeting with Mr. McKeague. This meeting was also taped by the complainant without the knowledge of Mr. McKeague. During the meeting, Mr. McKeague made a number of comments including that the complainant's performance was suffering; her chances of success at Staubach were zero; she had great difficulty working with everybody; he heard her (when she brought up her view that she had been harassed and targeted); and there is the aspect of the "boys' club" (after she first referenced it). When pressed during the meeting for the reason for deciding to end the employment relationship, Mr. McKeague described the complainant as being difficult and explained that he had to get rid of her or everybody else.

193On the day of the termination meeting, Ms. Thompson testified that Mr. Wells said the complainant could go "postal" (her interpretation) meaning that she was crazy and could shoot somebody. Mr. Wells agreed that he made some comment about the post office but says that it was more of a commentary of the process used, since after firing the complainant Mr. McKeague left the building. He states that he regrets the comment.

194Beginning with the question of reprisal, I do not find there is a basis for concluding that the termination amounted to a reprisal within the meaning of the Code. The respondents correctly highlight that the mere fact that an employee is dismissed after making a complaint of discrimination does not prove reprisal and that proof of the employer's intent is required. I do not find that intent can be reasonably inferred from the evidence. While the complainant had a discussion with Ms. Litavski and Ms. Laughton which raised the possibility of going to the Commission, there is no evidence that Mr. McKeague or Mr. Leonard knew of this and the Commission does not suggest otherwise. While the complainant advised that she had complained to the Commission in her termination meeting, by that time the decision to terminate her employment had already occurred. Based on these facts, I do not find the claim of reprisal is established.

195However, I do find that the complainant's termination was contrary to the Code. I have concluded that the complainant was subjected to a poisoned work environment tainted by gender considerations. Based on the evidence, I am satisfied the evidence leading to my finding of a poisoned work environment (most particularly her difficulties in working with the other agents) was at least one factor in the decision to terminate the complainant's employment. In fact, Mr. McKeague said as much by suggesting that he had to terminate the complainant or get rid of everyone else.

DID THE COMPLAINANT EXPERIENCE DISCRIMINATION IN REFERRALS?

196The Commission argued that the complainant was also discriminated against on the basis of referrals — those opportunities which came to agents from other persons either within or outside of the company. Apart from opportunities self-generated by each agent, referrals provided another source of potential commission income.

197In support of its position, the Commission relies on financial information produced by the corporate respondent which is available in a variety of forms. In some instances the company produced trade record sheets (showing the transactions made), extracts from mandates at a glance, invoices and a variety of other financial documents, some of which were produced for the litigation, reflecting the invoices and income (whether self-generated or referred) paid to each of the principals and the agents. From these documents the Commission and/or the complainant produced charts summarizing what they contend were the referrals paid. It is worth noting that these charts changed several times in the course of the hearing and there was evidence of various witnesses challenging the accuracy of the figures on the charts and whether items included were referrals or self-generated.

198In its final submissions, the Commission produced a revised summary chart which it states represents a compilation of a number of exhibits which had been prepared earlier by the complainant from the source material and supplemented by her testimony. The Commission argues that this summary chart establishes that the complainant was not given her proportionate share of the referrals in the last five years of her employment and that her share of referrals went down in her final two years of employment. In compiling this chart, the Commission includes referrals received for six agents including Mr. McKeague.

199I find it difficult to follow the Commission's chart as the periods used (commencing in the December of one year and ending the end of November in the subsequent year) correspond to the time periods reflected in the respondents' charts and not the calendar years used in the previous charts of the Commission and complainant. Moreover, the figures included do not consistently correspond to the other charts and the evidence presented in the hearing. The assumptions on which the calculations are based (Wells should not have received referrals while he was unlicensed and McKeague should not have received referrals because he was a manager) do not seem relevant to a human rights analysis. However, even assuming the information is correct, I do not find that the figures establish that it is more probable than not that gender was a factor in the allocation of referrals.

200What was the evidence on how referrals were made? The complainant testified that referrals were made based on seniority, success of the agent in self-generated work and the best agent for a particular deal, criteria which she stated she understood from Mr. McKeague. This evidence was not supported by either the documentary evidence or the evidence of the other witnesses.

201With respect to the former, in a number of the complainant's emails she was clearly trying to discern a policy rather than acknowledging that one existed. For example, in an email of December 12, 2001, she asks how the company was going to be distributing referrals (ensuring fair, consistent and even distribution) and in a later email to Mr. McKeague dated October 9, 2002, she directly asks a number of questions about the company's referral policy, including whether referrals are used to train juniors, does seniority play a part, and do agents get rewarded for self-generated business.

202In addition to the emails, I find the weight of the evidence of the other witnesses, including Mr. McKeague, supports the conclusion that the corporate respondent's practice was to select an agent with the right experience and skills but also focusing on selecting an agent who would be most likely to get the mandate signed (as even a referral is only a "potential" commission). Given all the evidence, along with the fact that it makes sense in the circumstances, I accept that management exercised significant discretion in making referrals and a number of factors went into that discretion.

203The significance of this conclusion is that I do not presume that a pattern of inequity alone is indicative of discrimination based on gender.

204Further, and in any event, when considering the actual referrals received, I cannot conclude that the pattern is sufficient for establishing that gender was a consideration. Looking at the last three years, when based on the number of months worked, Mr. Rose received the smallest share of the referrals of all agents in two of the three years. While I do accept that the complainant's referrals went down the last two years, this fact alone when viewed against all of the evidence does not establish discrimination, particularly given the manner in which referrals are allocated.

205In short, the Commission has not met its onus of establishing that the manner of allocating referrals to the complainant has violated the Code.

LIABILITY

206The Commission argues that this is an appropriate case for finding Staubach and its two principals, Mr. Leonard and Mr. McKeague, jointly and severally liable for all findings of discrimination, harassment and reprisal made by the Tribunal regarding their own conduct and any employees and agents of Staubach. The Commission states that Mr. McKeague is a principal in the corporation and Mr. Leonard is the broker of record. In addition, the Commission relies on the fact that they were the only two shareholders of the holding company which owns Staubach.

207Further, the Commission asks that I find the other personal respondents jointly and severally liable with Staubach for any discriminatory acts that they are found to have done.

208The rationale underlying the Commission's position is that the corporation is no longer operational and therefore, not likely in a position to accept legal or financial responsibility; the respective conduct of the individuals is central to the case; and third, given the egregious nature of the conduct, a personal remedy is warranted.

209Given my findings in this case and the evidence before me, I am not convinced that this is an appropriate case for making the individuals jointly and severally liable, nor for ordering separate remedies against the individuals.

210First, I note that I have not found that Ms. Papillon breached the Code by her role in the creation of the email.

211With respect to the remaining respondents, when I consider my findings, what is key is that I have concluded there was a poisoned work environment that was not recognized and addressed by Mr. McKeague and Mr. Leonard and this environment was a factor in the complainant's subsequent termination. While the agents played a definite role in the creation of that environment, the agents who participated included agents that were not named as parties. In parsing out what occurred it becomes difficult to ascertain the role that each agent played such that the centrality of each agent's role can be determined in a manner that makes sense and would support an order finding the individual liable for damages. Ultimately, I find that the appropriate order is against the corporation.

212I have considered the Commission's submission that there is a juridical reason for naming the individual respondents. However, I do not understand the corporation to be bankrupt, only that it is not operational. In these circumstances, I do not find it appropriate to make an order against individuals on the presumption that the corporation will not be able to pay.

REMEDY

213Having concluded that the complainant's rights have been infringed, I must now determine what remedy, if any, is appropriate. The Tribunal's jurisdiction to award a remedy is set out in s. 45.2(1) of the Code, which provides that the Tribunal has the power to order monetary compensation for losses including compensation for injury to dignity, feelings and self-respect; to order restitution; and to direct any party to do anything that promotes compliance with the Code.

214In this case, the Commission sought a significant amount of monetary compensation for injury to dignity, feelings and self-respect and compensation for other losses in addition to seeking remedies to promote compliance with the Code.

Compensation for Injury to Dignity, Feelings and Self-Respect

215In Arunachalam v. Best Buy Canada Ltd. (No. 2), 2010 HRTO 1880 [reported 71 C.H.R.R. D/126], the Tribunal summarized the principles on which damages for injury to dignity, feelings and self-respect are awarded at § 52:

. . . The Tribunal's jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 [reported 69 C.H.R.R. D/325], at para. 16.

216In this case, the Commission and the complainant sought an award of $100,000 as against Staubach, Mr. McKeague and Mr. Leonard; $20,000 as against each of Mr. Wells and Mr. Rose; and $10,000 as against Ms. Papillon. The Commission submits that these awards are appropriate, based on the consideration of the complainant's case as against the criteria in the case law.

217In response, the respondents suggest that if there has been an infringement, such infringement was trivial and should give rise to nominal damages only.

218Applying the criteria in Arunachalam, I begin with an assessment of the objective seriousness of what transpired. In this case, I have found that the complainant was subjected to a poisoned work environment during her employment which, on the facts, seemed to commence in mid-2001 and continued until her termination in June 2003. Further, I have found that the complainant was terminated for reasons contrary to the Code since the discriminatory environment was a factor in the complainant's termination.

219The evidence on impact came from the complainant, in some instances was substantiated by other witnesses, and included a medical report of a psychiatrist who examined and treated the complainant, albeit almost two years after the complainant's termination.

220I accept that the complainant was seriously affected by the workplace environment commencing in the fall of 2001 and that it continued. For example, on October 15, 2001, the complainant communicated to Mr. McKeague and Leonard the impact the environment was having [on] her — that it was affecting her confidence, she felt that they were out to get her, that she was not sleeping well and it was causing her stress.

221Later, on November 30, 2001, she experienced symptoms which caused her to go to the hospital in Montreal. The emergency report, which the complainant testified reflected what she remembered telling the doctor, describes the symptoms the complainant presented with and the complainant's description of the lead up to this "panic attack" namely several weeks of tension, irritability, getting up at 5:00 a.m. to go to work before "they" get there, crying and even once suicidal thought and mild social withdrawal. Even assuming that the complainant may have experienced a "panic attack" in earlier years, I do not find that history mitigates the fact that the complainant experienced the symptoms she described on November 30, 2001, and that a doctor's impression was that it was a panic attack.

222Further, in 2003, following her attendance at the January meeting about the inflammatory email, the complainant described the serious impact of the meeting on her, including that she was trembling and overwhelmed and was extremely upset.

223The complainant testifies that she started withdrawing in the period leading up to her termination and spending more time in her office. While the evidence is impressionistic, other witnesses confirmed there was a change. Mr. Currie stated that whereas earlier the complainant had been gregarious, she became more of a loner and kept to herself during the last six months of his employment, which ended in the spring of 2003. Ms. Litavski, another respondent witness, made similar observations of the complainant.

224I also accept the complainant's testimony on the impact of the termination although it was difficult to ascertain the precise timing of the description of her feelings and symptoms. The complainant states that she continued to feel badly, had difficulty sleeping, her social relationships were affected and at one point she stopped eating and would sit in her house and literally stare at the walls for hours. The complainant was referred by her former counselor to a family physician, who in turn referred her to Dr. Barbara Schogt in 2005. In her evidence, the complainant cited experiencing panic and anxiety when she had to re-live what occurred in a discovery process occurring in her civil litigation.

225Dr. Schogt's report was submitted as an exhibit and I heard from her in the hearing. Dr. Schogt states that the complainant's functioning in her work and personal life have been significantly affected first by her work environment and then by the focus required to launch and pursue the lawsuit. I did not find Dr. Schogt's evidence to add measurably to the complainant's own testimony. Dr. Schogt commenced treating the complainant almost two years after the termination. She acknowledged that much of her report was based on the complainant's self-report. Further, Dr. Schogt acknowledged in her evidence that she was unaware of the details of earlier symptoms that may have been assessed by Dr. Connell, who treated the complainant in 1999 and on a single occasion in 2000. She agreed that, had she been aware, it may have affected her diagnosis. The acknowledgement of these considerations affects the weight I attach to Dr. Schogt's evidence.

226Finally, I have considered the comparators in the case law. The respondents correctly point out that the range of remedies is significantly less in the Tribunal's case law than the amounts proposed by the Commission. Moreover, in those cases, where some of the Tribunal's larger awards have been made, there has been physical touching or assault and the complainants/applicants have been objectively more vulnerable than the complainant in this case.

227Recent awards for intangible losses made where there has been a finding of sex discrimination not related to pregnancy resulting in termination or loss of employment range from: Sanford v. Koop (No. 2), 2005 HRTO 53 [reported 55 C.H.R.R. D/102] ($25,000 general damages, $10,000 mental anguish); Hughes v. 1308581 Ontario Inc., 2009 HRTO 341 [reported 67 C.H.R.R. D/81] ($25,000); Hope v. Maplewood Painting, 2009 HRTO 595 [reported 67 C.H.R.R. D/168] ($40,000 intersecting grounds); Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 [ CHRR Doc. 09-2403] ($25,000); Smith v. Menzies Chrysler Inc. (No. 2), 2009 HRTO 1936 [reported 68 C.H.R.R. D/374] ($35,000); Bahen v. Catering 101 (No. 4), 2009 HRTO 2271 [ CHRR Doc. 09-2938] ($2,000); Harriott v. National Money Mart Co., 2010 HRTO 353 [reported 70 C.H.R.R. D/1] ($22,500).

228While I have considered the awards, I accept that the award in each case must be based on the findings made. In the circumstances of this case, considering the particular findings in this case, including the duration of the discriminatory treatment, the impact on the complainant and the case law, I find that the appropriate award is $30,000 for compensation for injury to dignity, feelings and self-respect arising out of the discrimination.

Monetary Compensation for Other Losses

229Under the Code, a person whose rights have been infringed is also entitled to monetary compensation for actual losses arising out of the infringement. The purpose of compensation is to restore a complainant as far as reasonably possible to the position that she would have been in had the discriminatory acts not occurred. In the case law, this has included compensation for lost earnings and various other types of compensatory orders.

230In determining compensation for lost wages that may flow from discriminatory termination, any award is subject to a complainant's duty to mitigate her losses by making reasonable efforts to obtain suitable employment. The onus of proving a failure to mitigate is on a respondent.

231In this case, the Commission and complainant seek significant compensation, including an amount to compensate for referrals not given to the complainant during her employment; the expected loss of referrals to the end of 2004; an amount to compensate for her loss of self-generated income; lost income from SEMS, an area that the complainant was active in developing during her employment; out-of-pocket expenses to set up her own company; and the cost of retaining counsel.

232I have decided that the Commission and complainant have not satisfied me that the referrals were allocated in a manner contrary to the Code. I therefore do not find it necessary to consider any compensation owing for referrals during the complainant's employment.

233In determining the remaining claims for compensation, I find it useful to consider the losses under three headings: losses flowing from the discriminatory treatment, losses flowing from the termination, and other losses.

Loss of Self-Generated Business Resulting from Discrimination

234The Commission and complainant argue that the discriminatory environment had an impact on the income the complainant earned when she was employed. They argue that I should draw a reasonable inference that the rumour reduced the complainant's pool of potential clients and therefore the business she was able to self-generate. In calculating this loss, the complainant's income for 2000 is accepted as a baseline; for every year after, the contention made is that the complainant's income should have continued to increase by 15 percent. As the complainant's income did not increase in this manner, the Commission states that the complainant is entitled to be made whole; the losses are calculated as $498,755.41.

235I am unable to conclude on the evidence that there is sufficient evidence to establish that the discrimination affected the complainant's ability to self-generate business during her employment. The only evidence given that reflected a connection between the rumour and the potential loss of work was the advice of the vendor which resulted in Mr. Bronetto's discipline. Notably, there was no suggestion that that vendor had determined that she would not work with the complainant. Moreover, the evidence on commissions generally seems to indicate that fluctuations occur. For example, the complainant's income went down in 2001, climbed in 2002 (in fact that was her best year financially, albeit primarily due to one large account) and decreased in 2003.

236Based on the above, I find there is insufficient evidence to support a conclusion that the complainant incurred losses in her self-generated income as a result of the discrimination she faced while employed.

Losses Resulting from the Termination

237At the time the complainant was terminated, she was provided with $42,000 in a severance payment. This figure was based on providing the complainant with six months' pay (the figure arrived at by averaging the complainant's income for the start to the month before she was terminated, which I have presumed includes her referred and self-generated income). The Commission and complainant did not appear to dispute the underlying accuracy of the formula to the extent it was based on what she actually received, but their remedial request was that she should have [been] awarded more compensation and for a longer period of time (up to December 2004).

238Shortly after her employment was terminated, the complainant pursued other work opportunities. In July 2003, she began to make calls and met with representatives of a few firms. According to the complainant, she received positive responses from two. A senior representative in one brokerage firm wanted to hire her. The complainant expressed some apprehension about the workplace being male-dominated and the representative assured her that most people in the firm are women and all work well together. The complainant was to get back to him, but did not. In the hearing, the complainant explained that she was concerned about how the service of accounts was handled in that firm. She stated that it was more disjointed, that once an agent brought in an account it was handed off to someone else.

239A second firm contacted the complainant and expressed interest in hiring her as director for offices they wanted to start up in Vancouver and Calgary. The complainant said that this contact occurred within months to a year of the termination. The complainant met with representatives of the firm in Montreal. The complainant said everything sounded good. However, she was concerned about it being difficult to start up businesses in Calgary and Vancouver at the same time that she was pursuing litigation. Also, she was wrestling with the idea of whether she wanted to stay in the industry as she felt quite "beaten up by it".

240The complainant described how on a good day she could take things on but on other days, she could not get out of bed.

241In or about the fall of 2003, the complainant decided to start her own business. The complainant states that she started attending networking events and meeting with potential clients. She reports a very modest business income since her business started and cites that she has expended a significant amount on legal fees as a result of the litigation she commenced.

242It did not appear from the evidence that the complainant continued with any efforts to seek work in a brokerage firm.

243On the basis of this evidence, I have difficulty finding that the complainant has met her duty to mitigate. While it may have been reasonable to not wish to move out of the province in the case of the one job, the complainant's reason for rejecting the other brokerage firm job does not seem reasonable. I note that compensation was not cited as a reason for rejecting the offer, nor was the nature of the environment, and neither was her health. Instead it was limited to the manner in which services are provided to the clients; the inference I draw is that the complainant prefers to service an account differently.

244Based on this evidence, even accepting that the termination had a serious impact on the complainant, I do not find the evidence supports a finding that it prevented her from pursuing and accepting work opportunities.

245Instead, the evidence reflects that the complainant decided that starting up her own business was her preferred option as a career path. While the complainant has this prerogative, this does not mean that any financial implications that may flow from such a decision are to be borne by the respondents.

246I did not receive evidence on the details associated with the particular job offer other than there was an immediate interest in hiring the complainant. However, looking at all of the evidence, I find that it is more probable than not that had the complainant wanted employment in a brokerage firm she would have been successful in obtaining such employment, at least within the period covered by her severance payment (the first six months following termination). As noted, she met the representative who offered her a job in July 2003. There was another promising offer at some point that year. Further, in an email dated in October 2003, she commented that she had a "number of offers" but was not terribly enamored with the idea of working in a brokerage firm.

247In the circumstances I find that the complainant had job opportunities but elected to not take such opportunities. As a result I do not find she met her duty to mitigate.

248I will make brief comments about the various amounts sought by the complainant in respect of the period following termination. While somewhat unclear, to the extent the Commission and the complainant may be asserting that the six months' severance payment was inadequate (since the compensation they seek covers in part this period), I will address their requests.

249There is a request for further income for referrals to the end of 2003 based on figures provided by the complainant suggesting that the total referrals for the period up to November 2003 was $285,203, and therefore the complainant is entitled to a proportionate share. Given that the severance payment is based on the complainant's actual income in the past (which is inclusive of referral and self-generated income), I do not find that a further payment is owing. Moreover, as noted above, my findings on the distribution of referrals also undermines this claim. Further, and in any event, as noted by the respondents and unchallenged by the Commission, the evidence reflects that the aggregate referral income for Staubach in the period up to November 2003 was significantly less ($23,720 as the accounts included in the Commission's figures included accounts that were self-generated).

250A second category of lost income claimed relates to an amount for self-generated income. Here the Commission proposed alternative methods of calculation, suggesting that either her income should have continued to rise in 2003 by the 15 percent per year or she should get an estimate of the work in progress for the accounts that the complainant was working on at the time of her termination. In arriving at the estimate, the Commission proposes that the estimated value of the prospects (the business deals she was working on) should be reduced by 35 percent in consideration of the possibility that a deal may not have closed. In fact, the evidence reflects that some of these prospects never came to fruition in the sense that Staubach secured the deal. Further, Mr. McKeague made it clear to the complainant during her termination meeting that she was welcome to continue to pursue these prospects following termination. Based on the evidence and submissions, I am not satisfied that the Commission has sufficiently demonstrated that the complainant should have received additional income to compensate her for self-generated accounts.

251The Commission also seeks losses for the SEMS prospects the complainant was working on at the time of her termination on the theory that she should be awarded an amount that recognizes the possibility that she would have reached deals on these prospects. While the complainant was active in working on SEMS during her employment, there is no basis for drawing a reasonable inference that deals would have been achieved in 2003 or even 2004. The evidence reflects that the SEMS prospects take a very long time to bring to fruition. The complainant did not secure a SEMS deal during her employment nor were any deals achieved by Staubach following her termination in the period until the corporation stopped having an active business in November 2004. Further, to the extent I heard from witnesses on two SEMS prospects that the complainant was working on, the evidence did not support either the estimated figures relied [on] by the complainant or her optimistic view that Staubach would be retained. On this evidence, there is no basis for awarding any further compensation.

Other Losses

252The Commission also seeks the complainant's out-of-pocket losses primarily with respect to setting up her own company. The costs include car lease payments, car insurance, office supplies, health insurance and various other expenses. The Commission relies on expenses that were incurred by the complainant for 2003.

253I do not find there is a basis for making an order for these items. As mentioned above, the evidence suggests that the complainant chose to start her own business as opposed to pursuing a position in a brokerage firm. Further, the complainant acknowledged certain shortcomings with the information: she was not compensated for all of these items when employed by Staubach and the expenses accrued throughout 2003, including the period before she was terminated. Having regard to the above, I do not find it appropriate to make an order for these losses.

254The Commission also seeks an amount to cover the complainant's expenditures in retaining counsel, although in respect of what proceeding is unclear as the complainant did not have counsel in this proceeding. The request is that the amount be paid as a form of general or special damages.

255The Tribunal has consistently held that it does not have the jurisdiction to award legal costs under the current Code or its Rules. See Clennon v. Toronto East General Hospital (No. 3), 2010 HRTO 506 [reported 70 C.H.R.R. D/58]. I make no award for reimbursing the complainant for her expenditures in retaining counsel.

256Finally, the Commission seeks pre-judgment and post-judgment interest on the compensation ordered in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"), commencing on November 30, 2001, the date that the complainant attended the hospital.

257I do make an order for interest. However, in the circumstances I find it appropriate that any pre-judgment interest run from September 9, 2002, the mid-point between November 30, 2001 (the date the complainant attended at the hospital), and June 18, 2003 (the date of termination), to reflect that the compensation has been awarded for the discrimination found, which commenced in the fall of 2001 culminating in the termination on June 18, 2003.

REMEDIES FOR FUTURE COMPLIANCE

258Section 45.2(1)3 of the Code gives the Tribunal the power to make an order to promote future compliance. The Commission does not seek any remedies for future compliance against Staubach, given that the company is no longer operational. However, the Commission does request that:

i. each personal respondent, at his or her own expense, attend training on human rights principles, with emphasis on discrimination because of sex and gender, within three months of the Tribunal's decision and advise the Commission of the nature and completion of such training;

ii. each personal respondent serve a copy of the Tribunal's final decision on their respective current employer by email and courier, with copies of such correspondence provided to the Commission;

iii. in any future role as a principal, senior manager or owner of a company operating in Ontario, Mr. McKeague and Mr. Leonard be required to forthwith implement an anti-harassment and anti-discrimination policy and training for staff; and

iv. the Tribunal remain seized in the event of a dispute arising as to whether the respondents have complied with any aspect of the Tribunal's order.

259Among other things, the Commission argues that these remedies are appropriate because the respondents lack a basic understanding of human rights and contrition for the events that occurred.

260In the event that the corporation was operational, I would have found training to be an appropriate remedy for all staff. However, in the circumstances as described during the hearing, I do not find it appropriate to order training. The corporation is presently not operational and the employees who were individually named are working in other workplaces. Having regard to these facts, I am not convinced that it is appropriate to order training.

261Further, having not found the individual respondents liable, it is not appropriate to make awards against them.

262In any event, I would make the following observations. The findings that relate to the conduct of the corporation (through its managers, Mr. McKeague and Mr. Leonard) were primarily in respect of the handling of the complainant's concerns and the termination of her employment. Neither is currently in a management position. Further, I expect the decision will provide them with a better understanding of their responsibilities should they engage in a similar role in the future. As well, I note that to the extent contrition is relevant, I found that both Mr. McKeague and Mr. Leonard acknowledged in various ways that the extent of negativity directed at the complainant (some of which they were unaware), would have impacted on her work environment.

263I also do not find that it is appropriate to order that the decision be delivered to the respondents' current employers. In the circumstances I do not view this request as promoting compliance with the Code.

264Finally, I do not find it appropriate to make an order that would only be operative in the future in the event that Mr. Leonard and Mr. McKeague take on a senior manager or similar role in the future. I find that the request is based on speculation and as such, I decline to make the order.

265In the result, I order the following:

i. Staubach Ontario Inc. shall pay the complainant $30,000 as compensation for injury to dignity, feelings and self-respect; and

ii. Staubach Ontario Inc. shall pay pre-judgment and post-judgment interest on this amount from September 9, 2002, to the date of this decision, in accordance with the CJA, and post-judgment interest on any amount not paid within 30 days of the date of this decision, in accordance with the CJA.

NOTE

• Ed. Note: Also spelled as "Thomson" by the Tribunal.