HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
S.S. Applicant
-and-
Quinton Taylor Respondent
DECISION
Adjudicator: Michelle Flaherty Date: September 26, 2012 Citation: 2012 HRTO 1839 Indexed as: S.S. v. Taylor
WRITTEN SUBMISSIONS
S.S., Applicant Robert Nadeau, Counsel
Quinton Taylor, Respondent No one appearing
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”), alleging sexual harassment in employment.
2The applicant was employed as a waitress at Brad Marsh’s Blue Line Grill Ltd. (“Restaurant”). She alleges that the respondent, Quinton Taylor (“Taylor” or “respondent”), the Restaurant’s general manager, made repeated, explicit, and intimate advances and comments of a sexual nature to her. She states that he knew or ought reasonably to have known that these comments were unwelcome.
3The respondent did not attend or participate in the hearing of this matter. However, for reasons I explain below, I am satisfied that he received notice of the proceeding and the hearing took place in his absence on June 18, 2012.
4For the reasons that follow, I find that the respondent discriminated against the applicant. In the Response filed on his behalf, Taylor admits making graphic and sexual comments to the applicant. Some of these comments were made in the presence and with the participation of co-workers and in a manner that was particularly humiliating to the applicant. Although the applicant readily acknowledged participating in sexual banter at work, I find that the nature of the respondent’s comments to her go well beyond what she condoned in the workplace.
5For the reasons that follow, I order the respondent pay the applicant $15,000 in damages for injury to dignity, feelings, and self-respect.
6In addition to Taylor, the applicant had originally named the following additional respondents: the Restaurant, the Restaurant owner and a further personal respondent.
7All of the respondents (including Taylor) filed a joint Response in which they deny the allegations of discrimination. Later, however, counsel for the respondents filed a Request for an Order During Proceedings (“Request”), asking to be removed as counsel of record for Taylor. She stated that there had been a breakdown in the solicitor-client relationship. The Tribunal granted this Request on December 15, 2010: 2010 HRTO 2489.
8This matter was originally scheduled for hearing on January 16 and 17, 2012. However, as I set out in a Case Assessment Direction (“CAD”) dated January 20, 2012, Taylor made a last-minute request that those hearing dates be adjourned because of a serious illness. I granted the request for adjournment, concluding that there were extraordinary circumstances that prevented Taylor from attending the hearing on the scheduled dates.
9In my January 20, 2012 CAD, I directed Taylor to provide up-to-date contact information to the Tribunal and to all parties because his previous contact information appeared to be no longer valid. He did so on February 3, 2012.
10On March 2, 2012, the Tribunal issued a Revised Notice of Hearing (“Notice”), indicating that the hearing would take place on June 18 and 19, 2012. The Notice was sent to Taylor at the address he had provided to the Tribunal. It was not returned to the Tribunal as undeliverable.
11The applicant and all of the respondents except Taylor attended the June 18 hearing. The parties present agreed to participate in a mediation-adjudication. They signed an agreement in which they agreed that I would facilitate settlement discussions between them and that, should such discussions not resolve the Application (in whole or in part), I would also conduct the hearing and adjudicate the matter.
12As a result of the mediation-adjudication, the Application was resolved against all respondents except Taylor. The style of cause has been amended accordingly.
13Because of the mediation-adjudication, the hearing itself did not begin until approximately 1 p.m. By that time, Taylor had neither appeared, nor contacted the Tribunal to seek an adjournment of the hearing. As I was satisfied that he had received notice of the hearing, the hearing proceeded in his absence.
14At the hearing, I heard evidence from four witnesses: the applicant, Dr. David Baxter (a psychologist whom the applicant had consulted), and two of the applicant’s friends, Joanie Brissard and Andrea Allan. Each witness responded to questions posed by counsel for the applicant and answered questions posed by the Tribunal.
THE FACTS
15The applicant states that she worked at the Restaurant from approximately September - October 2008 until February 2009. She was 23 years old at the time.
16The applicant testified that the respondent was the general manager of the Restaurant and her superior. As general manager, he was in a position to confer or deny benefits to her. For example, the respondent was responsible for shift scheduling and he decided who worked the busier (and more lucrative) shifts. He could also accept or refuse employees’ requests for time off.
17It is clear from both the Response and the applicant’s testimony that the work environment at the Restaurant was sexually charged. The applicant had no difficulty acknowledging this or explaining that she and others engaged in sexual banter, flirting, and told dirty jokes. The applicant described the atmosphere as pretty typical of a restaurant/bar and she stated that, but for the allegations of sexual harassment described below, it was similar to the atmosphere at other places she had worked in the past.
18The Application centres around the following four incidents.
19First, one night in October 2008, the applicant participated in an after-hours card game with some of her co-workers. During this game, Taylor stated that he could guess the colour of women’s nipples and, more specifically, that he could guess the colour of the applicant’s nipples. The Response filed on behalf of Taylor acknowledges that he made these comments.
20The Response takes the position that that the applicant condoned this behaviour, that she did not seem disturbed or uncomfortable because of the comments and that she continued to play cards and never raised the issue again. The applicant states that she brushed off this incident, she hoped that it was just men being “cave man-ish” and that it would not happen again.
21Second, sometime around November 4, 2008, the applicant went to the restaurant with her friend, Joanie Brissard. The applicant was not scheduled to work at that time; her purpose was to ask Taylor to change or cancel her shift so that she would not have to work on her birthday. The applicant states that her request was refused. Taylor told her that she could have the shift off only if she found her own replacement.
22In the Response, the applicant is alleged to have offered to show Taylor her nipples if he gave her the time off. The applicant denies this allegation. In her testimony, Joanie Brissard also denied that the applicant offered to show Taylor her nipples in exchange for a shift change.
23Third, on January 30, 2009, the applicant received the following text message from Taylor:
I had a crazy dream about you two nights ago. Basically I tried to see your nipples then finally after I asked for the 10th time you invited me to have a shower with you, very detailed, but strangely awesome.
24In the Response, Taylor admits sending the text message.
25The applicant did not respond to the text message. She did not raise the issue with Taylor or with the Restaurant owner. She testified that she had hoped it would just blow over and that, if she did not respond, Taylor would get the message that his comments were unwelcome.
26Fourth, on February 11, 2009, at 3:46 a.m. Taylor left the following voicemail message for the applicant:
Baby, we were just wondering what do you do, what do you call an eleven out of ten? A ten that swallows. And by the way we hear that you can squirt about a good 10 feet. I want you to ping-pong. I want it flying out of your cunt like a massive fucking truckload of great fucking pussy juice. You can squirt wherever you like. You can squirt wherever you like. Please have my children. Right in his eye. You should squirt right in his eye. Keep him fucking pang pong ping. You can squirt in his eye.
27In the Response, Taylor admits to having left this voicemail message. He states that he did this during a late night party at his home, attended by several male staff members of the Restaurant. Indeed, in the recording of the message, there are both other voices and laughter in the background. Others appear to be listening to Taylor leave the message and even participating: the message ends with someone other than Taylor making comments of a similar nature to those cited above.
28The Response states that other, similar calls were made to other employees, intimating that the applicant was not being treated differently from other female staff. It also states that the voicemail message was a “recycling” of comments the applicant had already made to staff members.
29The applicant categorically denies ever making comments of this nature. She states that she was traumatized by the message, by the fact that her manager and a number of her male co-workers were discussing her in this manner.
30After February 11, 2009, the applicant never returned to work at the Restaurant, nor did she have any further communication with the respondent. She states that she felt “uber creeped out”, that she did not want her boss thinking of her in the manner apparent in the voicemail message. She also described feeling “horrified” that Taylor and other co-workers were talking about her body in this way and laughing about it at a party. She referred to Taylor’s comments in the message as being “personal” and “directed at her”. She stated that they “made her skin crawl” and she categorically denied having sought that kind of attention from him.
31Dr. Baxter testified that he is a clinical psychologist and that he met with the applicant on five occasions in June 2009 and February 2010. He also prepared two reports regarding, among other things, the psychological impact of the incidents described above on the applicant. The reports are dated September 8, 2009 and March 17, 2010. At the applicant’s request, I accepted that Dr. Baxter was an expert, qualified to provide opinion evidence as to the applicant’s psychological state. His reports were admitted into evidence.
32Dr. Baxter testified that he has diagnosed the applicant with post-traumatic stress disorder as a result of the incidents giving rise to the Application. He testified that the applicant had been deeply affected by the incidents and that these have had a significant and lasting impression on her.
33When he first saw the applicant in September 2009, he states that she was experiencing difficulty sleeping and lacked concentration. As she was attending school at the time, he wrote a letter supporting a request for accommodation for her because of the effects of the incidents described above. Although, in some ways, her condition improved over time, Dr. Baxter testified that she continues to have distress, anxiety, and hyper-vigilance. He said he was convinced that the distress he spoke of stems from the incidents giving rise to the Application because it is only when she speaks of these events that the applicant’s defences crumble. According to Dr. Baxter, the applicant can discuss other difficulties she has experienced without breaking down and having such a strong emotional reaction.
34Dr. Baxter also testified about the incidents’ enduring negative impact on the applicant. He stated that her defence mechanisms continue to be fragile as a result and that there is lasting impact on her relationships with others and her ability to deal with other stressors.
35Andrea Allen testified that she was with the applicant when she first listened to Taylor’s voicemail message. Allen stated that the applicant was clearly upset by the message. Both Allen and Brissard testified that they were the applicant’s close friends and that they noticed a change in her behaviour and her mood around the time of the incidents described above.
THE ISSUES
36The applicant has filed a Request seeking to have her name anonymized in these proceedings.
37This Application also raises the following substantive issues:
was the applicant subjected to sexual solicitation by a person in position to confer benefit within the meaning of subsection 7(3) of the Code?
did the respondent make the alleged comments?
were any such comments made “in the workplace” within the meaning of subsections 5(2) and 7(2) of the Code?
did the respondent know or ought he reasonably to have known that the comments and or the sexual solicitation complained of were unwelcome to the applicant? In considering this question, I must determine whether the applicant condoned the comments and behaviour she constitutes as harassing to the point that the comments were not unwelcome.
if the respondent sexually harassed the applicant, what is the appropriate remedy in the circumstances?
ANALYSIS
Request to anonymize
38The applicant filed a Request that her name be anonymized and that any other information that might identify her not be disclosed in this decision. None of the respondents took a position concerning the Request.
39In determining this Request, I must balance the sensitive and intimate issues raised in this Application with the well-established importance of open Tribunal hearings.
40The Tribunal has repeatedly stated that only compelling circumstances will warrant a publication ban of any kind. As the Tribunal explained in C.M. v. York Region District School Board, 2009 HRTO 735:
Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
See also: McKinnon v. Ontario (Correctional Services), 2010 HRTO 2002; Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24; Spears v. Durham Regional Police Services, 2009 HRTO 2215; XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906.
41The applicant argues that, in this case, her privacy and dignity interests favour the requested anonymization. The applicant testified that the highly graphic, explicit and personal comments at issue are particularly humiliating and have on-going repercussions for her self-confidence, her sense of self-worth, and her relationships with others. To disclose her name or other identifying information, she submits, would further victimize her and cause her additional and on-going pain and humiliation.
42I have no difficulty accepting the applicant’s arguments and evidence in this regard. In my view, given the obvious privacy interests at stake, this is an appropriate case in which to make an order pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure to protect the confidentiality of acutely personal and sensitive information.
43I am satisfied that the proposed anonymization relates to an important objective. If the Tribunal did not protect the identity of applicants in proceedings of such a personal and intimate nature, they may be less willing to pursue allegations of sexual harassment in such circumstances. As the Tribunal indicated in XY, supra, such an outcome would be inconsistent with the very purposes of the Code.
44I am satisfied as well that the requested measure appropriately balances the salutary and deleterious effects of anonymization. The applicant did not seek to prevent the public from attending the hearing or from accessing the decision. She simply seeks to ensure that her name does not publicly attach to the comments described above. In my view, the proposed anonymization is appropriately limited and it achieves the desired objectives.
45In all of the circumstances, I grant the applicant’s request to be referred to by her initials. The applicant has not pointed to any other information that she believes should be part of a publication ban because it will personally identify her. Accordingly, my granting of the Request is limited to the anonymization of the applicant’s name.
Allegations of discrimination
46The relevant sections of the Code are sections 5 and 7. They state:
Harassment because of sex in workplaces
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment in employment
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Sexual solicitation by a person in position to confer benefit, etc.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
Sexual solicitation
47As I have indicated, there is no dispute that the respondent sent the messages quoted above or that he made the alleged comments concerning the applicant’s nipples.
48I have no difficulty characterizing the impugned comments as sexual advances. Many of the comments are an explicit invitation to the applicant to have sexual relations with the respondent.
49I accept the applicant’s un-contradicted evidence that Taylor was her boss and that he was in a position to confer or deny benefits to her. I note that subsection 7(3) does not require that sexual solicitation be related to the workplace.
The respondent’s comments
50To establish that the respondent’s comments constitute sexual harassment under subsections 5(1) and 7(2), the applicant must demonstrate that they (i) amount to a course of vexatious conduct or comment, (ii) relate to the workplace, and (iii) were unwelcome or that the respondent ought reasonably to have known that they were unwelcome: Smith v. Menzies Chrysler, 2009 HRTO 1936, at para. 154.
51As I have indicated, there is no dispute that the respondent made the impugned comments. The respondent engaged in a course of conduct by making repeated comments. Further, given the nature of the comments, I have no difficulty concluding that they related to the applicant’s sex or gender. The comments were directed at the applicant specifically because she is a woman, they are degrading and they objectify her sexually.
52I turn now to the two further elements the applicant must establish to prove harassment.
Were the comments made “in the workplace”?
53The Response takes issue with whether the comments were made “in the workplace” and, as a result, whether sections 5(1) and 7(2) apply. There is no jurisprudential support for the proposition that sexual harassment “in the workplace” is limited to incidents that physically take place in the workplace, during work hours.
54As Dickson C.J. explained in Janzen v. Platy Enterprises Ltd., [1989] 2 S.C.R. 1252, the leading decision on the issue of sexual harassment in the workplace, it “may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.” Thus, the issue for me to determine is not whether the harassment occurred within the physical confines of the workplace, but whether they had work-related consequences for the applicant.
55Similarly, in Simpson v. Consumers’ Assn. of Canada, 2001 CanLII 23994 (ON CA), leave to appeal refused [2002] S.C.C.A. No. 83, the Court of Appeal found that incidents, although they did not occur during business hours or within the physical confines of the office, could constitute workplace sexual harassment. The Court considered, among other things, the supervisor’s behaviour during after-hours parties and events. At para. 72, the Court wrote:
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact.
56I have no difficulty concluding that, while not all of the incidents giving rise to this Application occurred at work, they are sufficiently connected to the workplace to engage subsections 5(2) and 7(3) of the Code. As I have indicated, one of the incidents occurred at work, albeit after hours. Another occurred off-site and after hours, but it was overheard by and involved a group of other employees. Importantly, all of the incidents, regardless of where they occurred, had job-related consequences for the applicant. Perhaps the clearest example of this is the applicant’s evidence that could not face returning to work at the Restaurant knowing that her boss and some of her co-workers had thought and talked about her as described in the voicemail message.
Did the respondent know or ought he reasonably to have known that his comments and advances were unwelcome?
57The respondent submits (in the Response) that the applicant condoned or invited his comments and behaviour. The applicant denies this.
58Because the respondent chose not to participate in this proceeding, the only evidence before me is that of the applicant and her witnesses. In determining whether the applicant was sexually harassed, I have considered whether the applicant’s evidence that she did not condone the respondent’s advances and comments is credible.
59In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):
…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 called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken…
60In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions with other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.
61Applying the principles set out above, I find the applicant’s evidence to be credible. She testified in a straightforward manner, she was responsive to the Tribunal’s questions, and her answers were internally consistent. The dismay she showed during her testimony seemed genuine and it is consistent with how Dr. Baxter described his interactions with her. I am also persuaded by the fact that the applicant did not try to deny, but readily conceded that she had participated in sexual banter and games at work and contributed to the sexually-charged environment there.
62Where there is a difference between the applicant’s testimony and the facts advanced in the Response, I prefer the applicant’s version of the events.
63I turn now to the specific question of whether the respondent knew or ought reasonably to have known that his comments and advances were unwelcome. As I have indicated, this issue requires me to consider whether the applicant condoned or invited the incidents she complains of.
64The applicant acknowledged that she participated in sexual banter, joking, and flirting in the workplace, but she argues that the respondent crossed the line with his advances and messages.
65I must consider whether, on the particular facts of this case, there is a distinction between the impugned comments and advances and the sexual behaviour and comments the applicant did condone in the workplace. In short, I am required, based only on the applicant’s evidence, to determine where this “line” was and whether it was crossed.
66The applicant argued that Taylor’s text message, his comments about the applicant’s nipples and, in particular, his text voicemail were so explicit and extreme that they are presumptively harassing. In this regard, her counsel cites McIntosh v. Metro Aluminum Products, 2011 BCHRT 34 (“McIntosh”). I note that this case was upheld on judicial review, 2012 BCSC 345.
67While I agree that the impugned comments are explicit and degrading in the extreme, I cannot accept the applicant’s argument that they are presumptively unwelcome as a result. Paragraph 107 of McIntosh, the passage the applicant cites in support of this argument, is actually a summary of a party’s position; it does not reflect the reasoning of the British Columbia Human Rights Tribunal. Indeed, the Tribunal in that case did not conclude that the comments in question were presumptively unwelcome. Rather, it considered evidence of the applicant’s behaviour and came to the factual conclusion that the respondent could not reasonably have believed her to have welcomed his advances in the circumstances.
68For these reasons, I do not think that McIntosh can be interpreted to mean that comments can be so explicit or vulgar that there are presumptively unwelcome. As the reasoning in McIntosh suggests, whether comments or gestures are unwelcome is a question of fact to be addressed on a case-by-case basis.
69The applicant also argues that the general sexual banter and behaviour at work was of a very different nature from the impugned comments and advances. She states that the former were general in nature: people spoke and joked about sex, generally, and the typical sexual banter was not about or directed at particular individuals. Conversely, she argues that the impugned comments were very different, both because they clearly constituted sexual advances and because they related specifically to the applicant, to her body, and to having sex with her.
70I accept this distinction. While the applicant welcomed and participated in discussions, jokes, and games about sex in the workplace, I find that she did not welcome or encourage the specific and explicit advances the respondent directed at her. There was nothing in the evidence before me to suggest that she sought or condoned this type of attention from the respondent.
71In this regard, the applicant’s behaviour in the face of the respondent’s comments and advances is telling. She either rejected or ignored him, yet the respondent continued to pursue her. This should have been a compelling indication to the respondent that his course of behaviour was unwelcome.
72As the Tribunal noted in Harriott v. National Money Mart, 2010 HRTO 353, at para. 108, protest or objection to a manager’s conduct is not a precondition to a finding of harassment. Because of the power imbalance in the manager-employee relationship and the perceived consequences of objecting to a manager’s behaviour, an employee may keep quiet about unwelcome conduct. But this does not necessarily mean that he or she welcomes it.
73For all of these reasons, I find that the respondent knew or ought reasonably to have known that his comments and advances were unwelcome.
Conclusions
74I find that the applicant has established discrimination within the meaning of subsections 5(1), 7(2) and 7(3) of the Code.
75For the reasons set out above, I conclude that the respondent made unwelcome advances to the applicant. He was her manager at the time and in a position to deny or confer benefits on her.
76I also conclude that the respondent’s impugned comments amount to a course of conduct or comment that are sufficiently connected to the workplace to engage subsections 5(1) and 7(3) of the Code. The comments are clearly of a sexual nature and they were directed at the applicant because of her gender.
77In regards to both the advances and the comments, I find that they were unwelcome or that the respondent ought reasonably to have known they were unwelcome.
REMEDY
78The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
79The applicant seeks monetary compensation from this respondent “in the range of $30,000 to $35,000.” She also seeks $8,000 as monetary compensation for therapy recommended by Dr. Baxter, but which she has not yet undergone.
80As I indicated at the hearing, it is not clear to me that an expense the applicant has not yet incurred amounts to special damages or an out-of-pocket expense. Counsel for the applicant did not point me to any case law where compensation had been awarded in similar circumstances. However, he argued that the applicant’s need for therapy should be a factor in my assessment of compensation for injury to dignity, feelings and self-respect.
81As I explain in more detail below, in determining the appropriate compensation for injury to dignity, feelings and self-respect, I have considered the applicant’s vulnerability and the impact of the discrimination on her. However, I can see no basis to award special damages to the applicant for expenses she has not yet incurred.
82I turn now to the issue of compensation for injury to dignity, feelings and self-respect. Such an award must recognize the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, at para. 153.
83In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed awards for injury to dignity and stated at paras. 52-54:
(…) 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.
84Applying these criteria in this case, I find that while the discriminatory incidents occurred over a relatively short period of time (during the course of approximately three months), they were very serious. The respondent’s comments and the voicemail message were markedly demeaning, humiliating and hurtful. The voicemail message, in particular, was made in circumstances that seemed designed to cause the utmost level of pain and humiliation to the applicant. Further, the respondent was the applicant’s supervisor and was in a position of power. In all of the circumstances, the applicant felt she could not continue working at the Restaurant and she felt that she had no choice but to leave her job there.
85I have no difficulty accepting the applicant’s evidence that she was traumatized by these incidents and that they continue to trouble her today. Both the applicant and Dr. Baxter testified about the significant and ongoing impact the discrimination has had on the applicant. Not only was the applicant very distraught immediately after receiving the voicemail message, the discrimination, the objectification and humiliation she experienced because of the respondent’s comments and behaviour continues to inform the applicant’s relationships and self-esteem today.
86Findings of discrimination based on sexual harassment arising from comments or gestures (but not involving touching) have attracted a range of compensation for injury to dignity, feelings and self-respect: see, for example, Haykin v. Roth, 2009 HRTO 2017 ($300); Gregory v. Parkbridge Lifestyle Communities Inc., 2011 HRTO 1535 ($1,000); Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($,1000); Harriott, supra ($7,500); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); and Smith v. Menzies Chrysler, supra ($50,000 in total, against several respondents). Cases on the higher end of the spectrum have tended to involve orders against not just the harassor, but also the employer who failed to ensure that the workplace was free from sexual harassment.
87Counsel for the applicant argues that this matter warrants a high quantum of damages, comparable to the higher sums the Tribunal has typically ordered in cases involving sexual touching. Counsel argues that “the pen is mightier than the sword” and that words can be just as hurtful as gestures.
88I accept that awards related to sexual harassment are often at the higher end of the scale: see Hill-LeClair v. Booth, 2009 HRTO 1629. However, this is not because there is a hierarchy of harm in human rights cases, but rather because sexual harassment is usually characterized by the vulnerability of victims, heightened personal impact, and the implication of more severe dignity interests.
89The Tribunal’s well-established approach to determining compensation is multi-faceted and, as I have already indicated, involves considering a number of factors, including those referred to in Arunachalam, supra and Hill-LeClair, supra. Under this approach, it is not strictly necessary to determine whether the applicant’s circumstances are comparable to instances involving sexual touching. Rather, I must consider the impact of the discrimination on this particular applicant in these particular circumstances.
90I have considered the Tribunal’s case law and the applicant’s circumstances, including the impact of the discrimination on her. I find that it is appropriate to order the respondent to pay $15,000 in compensation for injury to dignity, feelings and self-respect in this matter. In reaching this conclusion, I am influenced by the fact that the respondent was the applicant’s supervisor, the particularly demeaning nature of the respondent’s comments, the fact that one of the comments was made publicly, the continuing and significant psychological impact on the applicant, and the fact that she ultimately left her job because of the harassment.
ORDER
91Having found that the respondent violated the Code, I make the following order:
a. Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000 for her losses arising from the infringement of her rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43, as amended, from the date of the Application;
b. The respondent shall pay the applicant post-judgement interest on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act.
92The Tribunal will deliver this Decision to the respondent at the last address he provided to the Tribunal.
Dated at Toronto, this 26th day of September, 2012.
“Signed by”
Michelle Flaherty Member