G.G. v. [...] Ontario Limited, 2012 HRTO 1197

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

G.G.

Applicant

-and-

[…] Ontario Ltd. o/a I[…] and N.E.

Respondents

DECISION

Adjudicator: Eric Whist

Date: June 18, 2012

Citation: 2012 HRTO 1197

Indexed as: G.G. v. […] Ontario Limited ______________________________________________________________________

APPEARANCES

G.G., Applicant

Grace Vaccarelli, Counsel

[…] Ontario Ltd. o/a I[…] and N.E., Respondents

Dennis Ousyannikov, Student-at-Law

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of sex and sexual solicitation. The hearing took place on May 30, 2012. I heard testimony from the applicant and the personal respondent.

BACKGROUND

2N.E., the personal respondent, is the owner of I[…], the corporate respondent. On May 27, 2009, the applicant was hired by the personal respondent on a probationary basis as a graphics designer.

3The Application alleges that on June 10, 2009, the personal respondent sexually harassed and solicited the applicant. On June 11, 2009, the applicant reported what had allegedly happened on June 10 to the police. On March 3, 2011, the personal respondent was found guilty of sexual assault for the actions on June 10, 2009, that gave rise to the Application and the allegations of sexual harassment and sexual solicitation.

4On November 29, 2011, the applicant filed a Request for an Order during Proceedings requesting that the Tribunal accept the transcript of the oral judgment made by Justice Kozloff of the Ontario Court of Justice on March 3, 2011, finding the personal respondent guilty of sexual assault. This judgment followed a trial in which both the applicant and the personal respondent testified. The applicant requested that the verdict of sexual assault and the findings of fact made by Justice Kozloff be accepted by the Tribunal and that the respondents be denied the opportunity to re-litigate the findings and verdict arising from the personal respondent’s criminal proceedings.

5In an Interim Decision dated January 17, 2012, 2012 HRTO 135, the Tribunal determined that it would be an abuse of process to allow the respondents to challenge the facts as found by Justice Kozloff in the applicant’s criminal proceeding and that the Tribunal would accept these facts and the verdict that the applicant was guilty of sexual assault.

6As a consequence of this Interim Decision I heard no testimony at the hearing as to the events of June 10, 2009.

7Based on Justice Kozloff’s findings of fact I make the following findings. On June 10, 2009, the personal respondent pulled the applicant on to his lap while sitting in front of a computer, rubbed his face against the applicant’s cheek and kissed her on the lips. I find that the applicant pulled away and indicated to the personal respondent that she did not like what was happening. I find the personal respondent then pulled the applicant towards him and kissed her again, and caressed her breast. I find that he told the applicant that she was beautiful and that he wanted to hire her. I find that the applicant never communicated by words or conduct her agreement to engage in sexual activity with the personal respondent nor that he believed she had.

8I find that the personal respondent’s comments and touching set out above constitute a course of vexatious conduct or comment that the personal respondent knew or ought reasonably to have known were unwelcome. This conduct is contrary to sections 5(1), 7(2), and 9 of the Code which state:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of… sex ….

7.(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Harassment is defined in section 10 of the Code as:

engaging in a course of vexatious conduct or comment that is known or ought reasonably to be known to be unwelcome.

9I also find that the personal respondent’s inappropriate touching and comments that included a reference to the applicant’s attractiveness and an offer of employment constitutes a sexual solicitation or advance contrary to section 7(3)(a) of the Code which states:

7.(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;

10I further find that the respondents are jointly and severally liable for the above violations of the Code considering that the personal respondent, as the owner, is clearly a directing mind of the corporate respondent.

11I do note here that the respondents indicated at the outset of the hearing that they accepted that the personal respondent’s actions of June 10, 2009, for which he was convicted of sexual assault also constituted a violation of the Code.

12The focus of the hearing was on what remedies the Tribunal should order given this violation of the Code.

REMEDY

13The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation for injury to dignity, feelings and self-respect; to order restitution; and the power to direct any party to do anything to promote compliance with the Code.

Monetary Compensation for Injury to Dignity, Feelings and Self-Respect

14The applicant requests $25,000 in compensation for loss arising out of the infringement of her rights including injury to dignity, feelings and self-respect.

15The applicant testified that she did not return to work after June 10, 2009. She testified that to return to work would be to return to an unsafe environment and a situation in which the personal respondent would believe that she accepted that what had happened on June 10 was all right.

16The applicant testified that the events of June 10, 2009, have deeply affected her. She testified that she wanted to wash off the feeling of what happened to her but was not able to get rid of her sense of the personal respondent’s touch and to forget what was said to her. The applicant testified that she became depressed. She testified that she continues to have recurring thoughts about what happened and that thinking about the incident brings back feelings of being violated.

17The applicant submits that the circumstances of her case are comparable to those considered by the Tribunal in Cugliari v Telefficiency Corpoation, 2006 HRTO 7, where the Tribunal awarded $17,500 in general damages; Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 ($15,000 in general damages awarded); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000 in general damages awarded); and Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 ($25,000 in general damages awarded).

18The respondents submit that a request for $25,000 in general damages is excessive. The respondents refer to the Tribunal’s decision in Sanford v. Koop, 2005 HRTO 53, where the Tribunal lists a number of factors to be considered when assessing the proper quantum of general damages including the seriousness, frequency and duration of the offensive treatment. The respondents submit that given that the violation of the applicant’s Code rights arises out of a single, brief incident it should be considered to be less serious.

19The respondents refer to Justice Kozloff’s judgment of March 3, 2011, in which Judge Kozloff determined that the personal respondent’s actions were not premeditated but rather impulsive and submit that this is a further reason to consider the personal respondent’s actions to be less serious. The respondents challenge whether the case law supports an award of $25,000 relying on the decisions in a Sanford v. Koop and S.H. v. M[…] Painting, 2009 HRTO 59,5 as well as arguing that most of the cases the applicant wishes to rely on involve monetary awards of less than $25,000.

20The respondents further submit that the applicant failed to provide any medical evidence to support her claims that this incident has had a significant effect on her health. The respondents submit that it is relevant that the applicant did not require medication nor did she pursue counselling in order to help with whatever health issues she may have had as a result of the events of June 10, 2009.

21Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

22In Arunachalam, the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:

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 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

23The considerations discussed in Sanford v. Koop are:

• Humiliation experienced by the complainant.

• Hurt feelings experienced by the complainant.

• A complainant’s loss of self-respect.

• A complainant’s loss of dignity.

• A complainant’s loss of self-esteem.

• A complainant’s loss of confidence.

• The experience of victimization.

• Vulnerability of the complainant.

• The seriousness, frequency and duration of the offensive treatment.

24In Hill-Leclair v. Booth, 2009 HRTO 1629, the Tribunal stated that historically sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination, which can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated.

25I find the violation of the applicant’s Code rights to be serious. It involved inappropriate physical touching and this physical touching continued notwithstanding that the applicant made it clear to the personal respondent that this conduct was unwanted. I find the applicant was particularly vulnerable given that the personal respondent was not only her supervisor but the owner of the company for which she worked. I find that the applicant was effectively forced to leave her employment by the behaviour of her employer. I accept the applicant’s testimony that this discrimination affected and continues to affect the applicant’s sense of dignity, feelings and self-respect.

26I find that the fact that this was a single incident and one that was not premeditated lessens its relative seriousness. I find that the lack of medical evidence as to how the applicant has been affected and the fact that the applicant has not required medication or counseling lessens the weight I can give to her relatively brief evidence as to how the discrimination has affected her.

27Given these circumstances, I am satisfied that $18,000 as compensation for injury to dignity, feelings and self-respect is an appropriate award. I am of the view that this award is consistent with Tribunal case law relating to harassment based on sexual harassment and solicitation.

28The personal respondent provided oral and documentary evidence to indicate that the corporate respondent has had financial difficulties since 2009 and that this would affect the respondents’ ability to provide monetary compensation to the applicant. I have not considered this evidence in my decision.

29Section 45.2 of the Code expressly provides that the Tribunal’s jurisdiction is to pay monetary compensation to the party whose right was infringed “for loss arising out of an infringement….”. Given the focus of 45.2 is to compensate an applicant for the breach of his or her rights under the Code the financial impact these damages may have on the party responsible for the contravention of the Code is not a factor considered by the Tribunal. See, for example, Hughes v. 1308581 Ontario, 2009 HRTO 341.

Lost Wages

30The applicant requests $11,970 in lost wages. The applicant submits this is based on 133 days of being without work between June 11, 2009, when she left her employment with the corporate respondent until November 27, 2009, when she found employment as an administrative assistant. To support her claim, the applicant provided a document listing the prospective employers and positions she applied for and on what dates. According to this document the applicant applied for 70 positions between June 12 and November 11, 2009. During the period June to August 2009 the applicant was looking for positions as a graphic designer. Beginning in September 2009 the applicant began to apply for positions as an administrative assistant. The applicant acknowledged that there was a two-week period in July and August (July 22 to August 2, 2009) that she did not send out any job applications but testified that she did continue to look for job opportunities during this period.

31The applicant testified that on October 6, 2009, she began a two-day trial period with an employer to determine whether she would be hired but that she was injured in a car accident on October 7, 2009. On October 8, 2009, she was told by this employer that she was no longer being considered for a position. The applicant testified that she received physiotherapy for injuries arising from the car accident from October 9 to November 1 and although she did not apply for any specific jobs during this period she did continue to look for work.

32The respondents submit that the applicant is not entitled to 133 days of lost wages as she did not continuously look for a job between June 11 and November 27. The respondents submit that they should not be accountable for paying for lost wages for the periods July 22 to August 7 and October 7 to November 1, 2009, when the applicant failed to apply for any jobs and because the applicant was also unable to work during October 7 to November 1, 2009, owing to her injuries.

33The respondents further submit that the applicant would likely have been hired on October 8, 2009, following her two-day trial period with an employer except for her car accident and therefore the respondents should not be responsible for lost wages past October 8, 2009.

34The respondents further submit that the applicant should not have limited her job search in June to August 2009 to graphic design positions, that this was too narrow a field of job search.

35The respondents also submit that the personal respondent was considering terminating the applicant’s employment on June 10, 2009. The personal respondent testified that the applicant had made an error loading the wrong paper into a copier resulting in a financial loss for the respondents and that the personal respondent had put her on notice that any further mistakes could lead to the termination of her employment. The respondents submit that if the applicant had not been fired on June 10, 2009, then the applicant would likely have been fired before November 2009 because of performance issues or because of the financial pressures being faced by the corporate respondent.

36The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. However, the respondents have the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265.

37I find that the applicant has satisfied her obligation to mitigate by making reasonable efforts to obtain employment during the period June 11 to November 27, 2009. The fact that the applicant may not have sent out job applications during certain periods, most notably the period July 22 to August 2 and October 7 to November 1, 2009, does not lead me to conclude that she was not continuing her job search efforts during these periods. I accept the applicant’s testimony that during these periods she was still looking for work by looking for available jobs even though she did not apply for specific jobs during these periods. I am of the view that the applicant was involved in an ongoing, active job search and was reasonably attempting to mitigate her situation until such time that she did obtain employment.

38It is true that the applicant was injured during the period October 7 to November 1, 2009, which may have prevented her from accepting a job in this period. If this was the case it may have affected her claim for lost wages. However, the applicant’s evidence was that she did continue to look for work during this time and it was not until later in November 2009 that she was successful in obtaining a job.

39I also find the applicant’s decision to initially focus her job search for graphic design positions reasonable. She testified that she had just arrived in Canada and as she was lacking in “Canadian experience” she looked for work in her field of expertise, namely graphic design. Three months later she expanded her job search to look for administrative assistants’ positions. I find this overall job search strategy reasonable under the circumstances.

40I do not accept the respondents’ contention that the applicant would have been hired on October 8, 2009, following her two-day trial with a prospective employer except for her accident and that, accordingly, the respondents should not have to pay for lost wages past this date. This is unsupported speculation.

41I also do not accept the argument that the respondents may have terminated the applicant’s employment on June 10 or at some date prior to November 27, 2009, owing to the applicant’s poor performance or because of financial pressures faced by the corporate respondent. There was no persuasive evidence that the respondents were intending to terminate the applicant’s employment on June 10 and the suggestion that she may have had her employment terminated at some point after that is entirely speculative.

42There was a further dispute. The applicant testified that she worked 9:00 a.m. to 6:00 p.m., for a total of 45 hours per week. The personal respondent testified that the applicant worked 10:00 a.m. to 6:00 p.m., for a total of 40 hours a week. I had no documentary evidence regarding the applicant’s hours of employment. It was agreed the applicant earned $10.00 an hour.

43I am prepared to accept that the applicant began work at 9:00 a.m. This was the evidence the applicant provided not only at the hearing but during the proceedings before the Ontario Court of Justice (see p. 72 of the transcript of the Court’s proceedings on December 10, 2010).

44Accordingly, I am of the view that the applicant is entitled to $11,940 for lost wages. This is calculated based on the applicant earning $10 an hour for a nine-hour day and for being without employment for a period of 133 working days.

45The applicant is entitled to an order for pre-judgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (the “CJA”). The respondents will pay the applicant pre-judgment interest on her lost income from the date of her Application, October 26, 2009, to the date of this Decision.

Remedial Practices

46The applicant requests remedies under section 45.2(1)3 of the Code to “promote compliance with this Act”. She requests that the respondents be directed to obtain and review a copy of the Ontario Human Rights Commission’s Policy on Preventing Sexual and Gender Based Harassment and to use this policy as a basis for developing a policy on sexual harassment for the corporate respondent. The applicant requests that the respondent be directed to provide a copy of this corporate policy to the applicant within 90 days of the Tribunal’s Decision.

47The respondents took no position on the applicant’s request for remedial practices.

48I find it appropriate, given the circumstances of this case, that the corporate respondent develop a policy on sexual harassment. I accept the applicant’s further request that the respondents be directed to first review the Commission Policy on Preventing Sexual and Gender Based Harassment and to provide a copy of their completed corporate policy to the applicant within 90 days of the date of this Decision.

ORDER

49Having found that I[…] Ltd. and N.E. have violated the applicant’s rights under section 5, 7(2), 7(3)(a) and 9 of the Code to equal treatment and to be free from harassment because of sex as well as to be free from sexual solicitation, the Tribunal orders:

(a) Within 30 days of the date of this Decision, the respondents are jointly and severally liable to pay $18,000 to the applicant for violation of her inherent right to be free from discrimination and harassment, and for injury to her dignity, feelings and self-respect.

(b) Within 30 days of the date of this Decision, I[…] Ltd. is liable to pay the applicant $11,930 for loss of wages.

(c) The applicant is entitled to an order for pre-judgment interest in accordance with section 128 of the CJA. Pre-judgment interest will run from the date of the Application, July 21, 2009 to the date of this Decision.

(d) The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Order. Post-judgment interest on the awards is payable, pursuant to section 129 of the CJA.

(e) I[…] Ltd. shall develop and implementation a sexual harassment policy for the organization. A copy of this policy will be provided to the applicant’s counsel within 90 days of the date of this Decision.

50The applicant requests that the Tribunal remain seized in order to ensure the respondents adhere to the requirements of this order. This request is denied as the Tribunal’s order should provide sufficient guidance to the parties in this matter.