HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mukesh Chopra

Applicant

-and-

Noble Group of Finance

Respondent

decision

Adjudicator: Faisal Bhabha

Date: December 6, 2012

Citation: 2012 HRTO 2289

Indexed as: Chopra v. Noble Group of Finance

APPEARANCES

Mukesh Chopra, Applicant ) Glenroy Bastien, Counsel

Noble Group of Finance, Respondent ) Bogdan Kaminsky, Counsel

INTRODUCTION

1This is an Application filed on November 21, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant, worked as an independent insurance broker with the respondent firm from May 2002 until his dismissal in October 2008. The applicant alleges that he was sexually harassed throughout the course of his employment by the principal in the firm, Beata Kratiuk, was treated with indignity, and discriminated against on the basis of his race, sex, age and ethnic origin. He further alleges that he was reprised against for resisting this treatment and punished with dismissal, leading to sizeable financial loss. The respondent denies the allegations and maintains that the applicant was dismissed for just cause arising out of his own unscrupulous conduct.

BACKGROUND

2The hearing of evidence in this matter began on October 13, 2009, and concluded on December 7, 2011. Argument was made by way of written submissions. The applicant filed submissions on February 21, 2012; the respondent filed submissions on April 20, 2012. No reply submissions were filed.

3A number of procedural matters arose through the course of the hearing. Some of these have been dealt with in Case Assessment Directions and Interim Decisions; some were dealt with orally. At this point, it would be useful to summarize a few significant Interim Decisions and orders.

4The parties made various objections about each other’s compliance with the Rules. Both argued that the other’s compliance with Rule 17 disclosure was insufficient and both sought to amend their witness lists at different points in the hearing. The parties were each given considerable flexibility to adjust their witnesses and admit additional documentary evidence. Through case management, such requests were managed without causing prejudice or hardship to any party.

5On the first day of the hearing, respondent counsel raised the issue of deferral, pointing to the fact of ongoing proceedings in other fora, namely a civil action commenced on April 15, 2009, an employment standards complaint commenced on November 21, 2009 and a proceeding before the Financial Services Commission of Ontario (“FSCO”).

6I ruled that a deferral was not appropriate. The Tribunal’s general test for deferral is laid out in Baghdasserians v. 674469 Ontario, 2008 HRTO 404:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Although there are related proceedings which arose out of the same general facts that gave rise to this Application, I did not find that the issue of discrimination, sexual harassment and reprisal would be addressed in those cases. I indicated that any issue as to overlap in damages could be addressed upon determination of liability.

7The respondent also raised an issue about the naming of a personal respondent, Beata Kratiuk, rather than the corporate entity that employed the applicant. Counsel indicated that the company, Noble Group of Finance, conceded that it would be vicariously liable for any Code breaches attributed to Kratiuk, and committed to call her as a witness. The applicant opposed the request on the basis that Kratiuk’s alleged conduct was so egregious and central to the issues before the Tribunal that she could be found personally liable. Applicant’s counsel had no objection to adding the company as a corporate respondent.

8Considering the general factors to be considered in requests to remove personal respondents, outlined in Persaud v. Toronto District School Board, 2008 HRTO 31, I ruled that it would be appropriate to remove Kratiuk and replace her with the Noble Group of Finance as respondent in this case.

9The respondent also raised a jurisdictional issue, arguing that section 5 of the Code only contemplates employer-employee relationships. The applicant worked as an independent contractor and was paid a commission. This was the point in issue in the employment standards proceeding, where the applicant was seeking unpaid “wages”. I ruled that it is irrelevant, jurisdictionally speaking, whether the applicant was an “employee” or a “contractor”. The Tribunal has routinely interpreted the language of “in employment”, contained in section 5, to be broader than a strict employer-employee relationship. See Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421. Methods of statutory interpretation and established principles of human rights law do not support a narrow view of the Code’s reach.

10On the first day of the hearing, the applicant sought to amend the grounds pleaded in his Application. The Application as filed listed age and record of offences as the grounds claimed. The applicant sought to add race and sex (including sexual harassment) and to remove record of offences. This request was granted. Subsequently, the applicant sought to add ethnic origin, sexual advances and solicitation. The applicant also sought to amend his remedy request. The respondent opposed these requests on the basis that the applicant had plenty of time to plead his case, had already made one set of amendments and should not be permitted to make his case a moving target midstream. I added ethnic origin, given its relationship to the applicant’s pleaded ground of race, and denied the other proposed amendments. Thus, the grounds now considered part of the Application are age, race, ethnic origin and sex, in addition to sexual harassment and reprisal.

11On the last day of hearing, December 6, 2011, the applicant sought to admit further evidence, namely transcripts of testimony from the FSCO proceedings, and a recorded telephone conversation from March 2011. The respondent opposed the request on the basis that it was made without notice and well beyond the requirements of the Rules. With respect to the recording, the respondent objected on the ground that it was post-discharge evidence that only came into being during the course of the hearing. I refused to admit the evidence. It was not clear that the evidence was relevant or useful, and at the late stage of the proceedings, the prejudicial impact of admitting it outweighed any probative value it contained.

THE EVIDENCE

12The following is a summary of the evidence of the oral evidence of the witnesses who testified.

Applicant’s Witnesses

Mukesh Chopra

13The applicant was born and raised in India. At the time of his dismissal from employment, he was 54 years old. He testified that he graduated from the Indian National Military Academy in 1974. He spent time working in the military and then moved on to work for Tata & Sons Ltd as the Resident Manager for New Delhi, India. This employment lasted for 20 years. He testified that he immigrated to Canada with his wife and daughter in 2000 and took up residence in Mississauga.

14He testified that he obtained his insurance broker license and worked for London Life for one and a half years. He was named “broker of the year” in his first year, and earned upwards of $80,000 in his first six months. After moving to Noble Group, first as a contract broker beginning in January 2001 and full-time starting in May 2002, the applicant quickly rose to be a consistently top-earning broker not only within the firm, but in the insurance broker community nationally. He was a frequent member of the Million Dollar Roundtable for producing premiums of one million dollars or more. There was no dispute that the applicant was very successful at selling insurance.

15The applicant testified that Noble Group’s office was located in a portion of the Kratiuk’s family residence. The office had a separate entrance and was connected to the residence portion by a locked door. Staff did not need, or have, access to the house. The applicant testified that the proximity of office to the home gave Kratiuk the opportunity to sexualize the workplace and act flirtatiously with him. According to his testimony, this included bending over his desk such that her cleavage and parts of her breast would be exposed; that she would constantly telephone him to find out what he was doing; she frequently hugged him; and phoned him late at night for small talk.

16During his job interview in 2001, the applicant testified that Kratiuk asked him to tell her what was the best part of a woman’s body. He claims that he responded with the “eyes”; she said “no”; he said, “the lips” and again she said “no”. He was quiet, and then Kratiuk said “the breasts”. The applicant testified that he was shocked by this comment and even more shocked by the fact that Kratiuk’s husband, who was present, pretended not to hear, his head in a newspaper.

17The applicant testified that on another occasion when he was working late, Kratiuk came down the stairs in a sheer nightgown. He testified that she was not wearing anything under the nightgown and that from his position at the bottom of the stairs looking up at her he could see her genitals. He testified it made him very uncomfortable—Kratiuk’s husband and children were always in the vicinity and the applicant would “hide” so he “wouldn’t have to see her in her night dress”.

18He further testified that Kratiuk routinely spoke with him in “silly girlish talk” and would use “distasteful, shameful” body language with him, even in front of her husband. The harassment, he said, was “constant”. Some time in 2001, while sitting in Kratiuk’s car, the applicant claims Kratiuk told him to kiss her. He testified that he complied. In the office, he stated that Kratiuk required him to hug her before leaving. She also hugged him whenever he came in for work. He testified that these hugs would last 15-20 seconds.

19The applicant testified that he did not have sex with Kratiuk and that they were not having an affair. He testified that he gave her cards and flowers and told her that he loved her because she was aggressive and he felt that had to reciprocate and “play the game”. He testified that Kratiuk asked him to write her poetry. He testified that if he did not give her a certain number of cards and displays of affection each month that there would be negative repercussions to his career. By all accounts, his career was soaring.

20The applicant testified that Kratiuk gave him a photograph of her in a bikini. He stated that he felt compelled to ask for it as part of the “game” that they were playing. While this behaviour made him uncomfortable he felt compelled to reciprocate and play along because he was making $250,000 a year, which required him to go to the office to conduct his work.

21He testified that in or around January 2002 the people in the industry began to know his name, as his reputation for high sales spread. He discovered that Noble was not the “only game in town”. He testified that he attempted to accept an offer at another firm, but that Kratiuk refused to accept his resignation letter. She told him that anyone but he could leave Noble Group. He understood that Kratiuk was very upset by his departure and so he decided to return.

22After this, the applicant testified that Kratiuk became “very sweet” and intensified her sexual advances towards him. When pressed to particularize this allegation, the applicant testified that Kratiuk would give him eyes, even in front of her husband, which the applicant found “disgraceful”. He said that Kratiuk made it a requirement of his employment that he provide her with love letters and poetry, at least once every two weeks.

23He also testified that Kratiuk required him to be in the office at all times. He stated that Kratiuk would wait for him to be in the office and then approach him, entering his office without knocking, and openly flirting with him. He testified that “her body language was so bad. She’d put her hands on the desk and throw her body forward and wear loose t-shirts spilling out. You see the entire inside of her body, her breasts.”

24The applicant described the sexual harassment as “constant”. While it began with solicitations and advances, he testified that it escalated to threats in or around “March or April 2002 or 2003”. He could not recall when exactly, but he was certain that Kratiuk would ruin his career if he left Noble. He testified that he held this belief as a result of direct verbal threats, as well as implied threats and sexual enticements. One example he recalled was, “you can never leave, I will never let you go.”

25The applicant testified that Kratiuk was intimidating. In order not to upset her, he “played the game”. He admitted to telling her that he loved her, but testified that he did not mean it. He testified that at times he believed that Kratiuk was in love with him, but at other times he was confused, and he now believes that “it was all about the money”. He believed that Kratiuk was “capable of doing anything”. He was scared that she would ruin his career.

26Regarding the allegations of racial and ethnic discrimination, the applicant testified that the Kratiuks would constantly make derogatory comments when the applicant would bring clients of colour to the office. He testified that there were 16 or 17 incidents throughout the course of his employment. Sometime in 2004, the applicant was attempting to sell a policy to a person from Ghana. He testified that Kratiuk’s husband, Kris, told him not to deal with blacks. He testified that Kris also told him not to deal with Muslims and Arabs. The applicant’s allegations against Kris Kratiuk were not included in the application and are therefore not being determined here.

27The only specific incident involving Kratiuk to which he referred was an alleged slur against his friend, Anil Walia, in early 2008. Both the applicant and Walia described an incident when Walia was considering purchasing a policy, when Kratiuk allegedly passed and said to both of them: “Don’t do business with these Indians. They don’t have any money.”

28On October 29, 2008, the applicant received notice of immediate termination on the basis of section 16(b) of the employment contract, meaning termination for cause. The applicant testified that he was happy to be terminated. He stated that he had wanted to be “released” from the contract for some time and, as a result, accepted the loss of his job willingly. He managed to negotiate with Kratiuk a rescission of the termination and agreed to a resignation instead.

29Noble took the position that the incident giving rise to the termination was the applicant’s interference with existing clients of fellow brokers within the company. It described the applicant’s conduct as “stealing business”. The applicant denied the allegation. In relation to the client, Michael Fiala, whom the applicant was accused of poaching from another broker based on false information, the applicant denied any wrongdoing. He admitted that he had “helped” Fiala to cash out an existing product (sold by another broker) and to purchase two new products from the applicant.

30The problem for the applicant came following the termination of his employment. He claims that Noble Group failed to properly manage his files and stole his clients. He further claims that the respondent tried to shift blame for the mismanagement to the applicant by reporting him to the Financial Services Commission (FSCO), where he was brought under investigation for various alleged breaches of privacy and of brokers’ ethical rules. That matter went to a hearing in 2009, though the applicant continued to dispute its findings at the time of the hearing in this matter.

31The applicant testified that Kratiuk wrote letters to all employees and to his client, Industrial Alliance, advising that the applicant had been terminated. He testified that this “open letter” to the public, along with reporting him to FSCO, were intended to reprise against him for failing to yield to Kratiuk’s sexual advances and wanting to leave the company. He testified that Kratiuk wanted to humiliate him; no other broker who had left Noble Group was treated in this way upon leaving.

Anil Walia

32Anil Walia is the key corroborating witness for the applicant’s allegations of ethnic and racial discrimination. The specific particulars around this allegation concern an alleged incident involving Walia.

33In or around February/March 2008, the applicant met with Walia in order to sell him insurance. The men met on three separate occasions at the Noble Group offices. During one of these meetings, Walia testified that Beata Kratiuk approached the men and said to the applicant, “Why are you wasting your time? You know that Indians have no money.” Walia testified that he got up and told the applicant that this was unacceptable and that he would not be purchasing the insurance. Walia testified that applicant responded, “what can I do?”

34Although Walia did not purchase insurance from the applicant (or, at all, for that matter) the two men became friends and remained in contact. In their many years of friendship, Walia testified that the applicant never complained about racial or ethnic discrimination at work.

35On cross-examination, Walia admitted that the applicant appeared quite happy to be working at Noble Group. In particular, Walia believed that the applicant was happy to be working with Kratiuk. It was Walia’s view that the applicant and Kratiuk were involved in an “intimate relationship”, that had not been “actualized sexually”.

Cristina Papoutsis

36Cristina Papoutsis is a former employee of the Noble Group, having worked there from 1985-2005. She quit her job because she felt that Kratiuk was not treating her well and was “stealing” her commissions. Subsequent litigation, commenced by Kratiuk, resulted in a settlement and cash payment by Papoutsis to Kratiuk in the amount of $8,900.00.

37Papoutsis testified that that Kratiuk told her that the applicant was dishonest and that he was a “dirty Paki”. She testified that Kratiuk used this slur “hundreds of time”—virtually every time she referred to the applicant in conversations.

Tina Chopra

38Tina Chopra is the applicant’s wife of more than 20 years. She testified they had been separated for “at least six or seven years” at the time of her testimony in September 2010. She, like the applicant, is an insurance broker, though she has never worked for the Noble Group.

39Chopra testified that the reason she was separated from her husband was because she was convinced he was having an illicit relationship with his manager, Beata Kratiuk. Unlike Walia, Chopra believed that the relationship had been actualized sexually. She testified that she had overheard telephone conversations between the applicant and Kratiuk; that she had seen suggestive emails between the applicant and Kratiuk; that she had overheard them say “I love you” to each other on the phone; and that Kratiuk had invited the applicant over to her house, saying “come have a drink at my house, my husband is not home.”

40She also testified that the applicant would sometimes leave the house at midnight. She saw an email in which both the applicant and Ms. Kratiuk wrote “I’m in love with you”. She saw a Valentine’s card and love notes written by her husband to Kratiuk, and boxes of chocolates. Further, she testified that she found a photograph of a picture of a woman in a “very revealing” bikini on the beach whom she believed to be Kratiuk. This was the culminating incident leading to the separation. She testified that she confronted her husband, who told her that Kratiuk had invited him to move into her house. Chopra tore up the photo, packed the applicant’s bags and told him to leave.

41Chopra was unable to give precise dates for any of these alleged incidents, though they all occurred in the run-up to the couple’s separation in or around 2003, shortly after the applicant began working for the respondent. There was no documentary evidence filed regarding any of this. Chopra testified that she had deleted the email she had seen, and never kept any of the notes or cards.

42The applicant never did move out of the house. He and Chopra continued to reside separately in the same home, being legally separated. Chopra testified that the applicant told her that he could never leave the Noble Group because Kratiuk had told him that she would destroy his career if he left. Chopra believed the applicant earned $350,000 to $400,000 per year, making him one of the top brokers in Canada. For this reason, Chopra testified her husband was in high demand. It did not make sense to her that he would not leave Noble Group. She suspected that it was more than concern for his career that kept him with the company. She testified that she believed her husband was being forced to stay at Noble through “sexual manipulation” by Kratiuk. She testified that the applicant denied having a sexual relationship with Kratiuk, but Chopra did not believe him.

43Chopra testified that, on one occasion, she contacted Kratiuk’s husband, Kris Kratiuk, to confront him with her belief that their respective spouses were having an affair. She testified that Kris Kratiuk listened intently and then told her to delete the emails and not to believe anything. He told her that the applicant was a very good broker and tried to reassure her that there was no affair. She testified that Beata Kratiuk then came on the phone and also said that nothing was going on.

44On cross-examination, Chopra testified that the house in which she had continued to reside with the applicant was originally in the applicant’s name, but that it was transferred to her name in 2008 or 2009, more than six years after their separation. When questioned about the timing of the ownership switch, she explained that communication with her estranged husband had not been very good prior to that, but that it improved after the applicant left Noble Group and they were able to negotiate arrangements.

Respondent’s Witnesses

Beata Kratiuk

45Beata Kratiuk testified that she is the President of Noble Group. She was born in Poland in 1962. She completed her education and became a lawyer. In 1991, she and her husband immigrated to Canada. Speaking little English, Kratiuk began working as an insurance sales agent in 1993 and within a year was a top performer within her company. She testified that she did not like working for others. So, in May 1994, she opened the Noble Group with her husband, Kris, and two Chinese partners who were also brokers. Within three years, Kratiuk and her husband were on their own, buying property and opening their office in Mississauga.

46Kratiuk testified that her primary role in the company is to recruit people to be agents. She said that she looks for people who have a university degree and show potential. She introduces them to the insurance business, helps them obtain a licence, trains them to become a financial advisor, and then monitors their performance.

47She testified that she met the applicant in 2001 through an introduction from a broker named Igor and that at that time she had 60 to 70 brokers working for her. The applicant signed an employment contract with Noble Group on May 12, 2002.

48Kratiuk denied that she holds any animus towards any ethnicities. She strongly denied that any of the allegations of slurs or inappropriate racial or ethnic comments were true. She testified that her business relies on good relationships between people of different ethnicities. She described her own professional life as a multicultural one, having had Chinese business partners and employees originating from nearly 10 different countries. Kratiuk testified that she launched a new insurance business in November 2009 with a partner from India. Of eight brokers, she testified that she is the only “white” person—all of the others are from Asia.

49She testified that she will sometimes ask prospective employees what languages they speak, as this is relevant to determining which client groups the broker could work with. She specifically denied holding discriminatory attitudes towards South Asians. She further testified that she does not tolerate racism or inappropriate ethnic jokes in the office.

50When confronted with Anil Walia’s evidence, Kratiuk responded that she had never seen the man before he took the stand in this hearing. She denied making the alleged comment (“don’t waste your time with Indians”), and added that she would “never make a comment like that, especially when my broker is trying to make me money.”

51When asked about the applicant’s performance and the reasons for termination, she testified that without a doubt the applicant was a top performer from the time that he started with the company in 2002 up to 2007. He learned quickly, was determined and enthusiastic, and he made a lot of money. However, she testified that between 2007-2008 she began to notice changes in the way the applicant was handling the business. Kratiuk knew that FSCO had begun investigating the applicant in 2008, but he refused to disclose any details about the underlying facts and she was not entitled to disclosure. Kratiuk testified that she understood that the FSCO investigation had not been initiated by a client complaint, and therefore likely had nothing to do with her business. She respected the applicant’s desire for confidentiality around the facts of that case.

52Then, in the summer of 2008, Kratiuk testified that the applicant told her that he had “problems” with the Canada Revenue Agency (“CRA”). She offered to help him, to provide him with an accountant’s contact, but beyond that, she had little involvement and had no particulars of the facts. At around the same time, Kratiuk testified that one of her assistants told her that the applicant had told him that he owed about $160,000.00 to CRA.

53In October 2008, Kratiuk testified the applicant was invited to join the convention for the “million dollar roundtable”, to be held in Texas. Brokers qualify for this based on production levels, and every year the applicant had qualified. In the past, he had not chosen to go, but this time he wished to. Kratiuk testified that she agreed to pay for his flight and hotel so that he could receive the award. She felt that it was his right, given the amount of hard work he had delivered to the company.

54When Chopra returned from Texas, Kratiuk testified that she and her husband, Kris, had met with one of their clients, Michael Fiala, who told them that the applicant had contacted him and told him that Kris was “out of the business”. Fiala also told them that he had cashed out an existing policy, and purchased new life insurance from the applicant. Kratiuk testified that her assistant identified the policy application on October 28, 2008, and had brought it to Kratiuk’s attention. A copy of that document was admitted into evidence.

55Following this incident, Kratiuk investigated and determined that there were several existing Noble clients, represented by other agents, who had fresh insurance applications in the office signed by the applicant. She testified that she spoke with Fiala, along with clients Svetlana Kotlarenka and Mila Milic. She also spoke with brokers Wayne Lobban and Mark Yankovic. She heard a similar story in each instance: she was told that the applicant had contacted existing clients to tell them that their existing Noble agent was no longer in the business, and that they would have to cash in their existing policy and purchase new policies from the applicant.

56This, for Kratiuk, was direct evidence that the applicant was stealing work from his colleagues. She testified that the only way the applicant could have gained access to these clients would have been by taking their files from the office without authorization from the brokers or the administrative assistants.

57Kratiuk testified that she saw no need to investigate further. She never gave the applicant an opportunity to explain himself. What she saw in the documents and what she heard from her clients and staff was sufficient for her to conclude that the applicant had committed serious breaches of trust which amounted to “just cause” for immediate termination, within the meaning of the employment contract. At the end of the day on October 28, 2008, Kratiuk composed an email to Chopra informing him of the termination of his employment.

58She testified that the applicant came to her office on November 2, 2008, and “forced” her to agree to sign his resignation letter. She testified that she agreed to sign it because she wanted a “clean cut” and had no interest in preventing him from moving on with his career.

59Regarding the allegations of sexual solicitation and harassment, Kratiuk testified that none of the allegations are true. She specifically denied asking the applicant about body parts. She testified that she had never told the applicant that she loved him, either on a card, verbally or via e-mail. She testified that she did not write cards to the applicant. She testified that she did not know how the applicant obtained a picture of her in a bikini.

60She testified that the applicant gave her flowers and cards and signed with “love Mukesh”. She testified that she could not remember if he had ever told her that he loved her. In any event, she did not read into these gifts or concern herself with the applicant’s feelings for her. Her interest in him was to make money.

61She testified that the applicant tried to make advances on her. One example she gave was when the applicant was going away on vacation, he asked for a hug and then held on for so long that she had to push him away and tell him not to do that again. She testified that this sort of thing happened on four or five occasions.

62Kratiuk testified that it was the applicant, not she, who insisted on giving hugs, cards and gifts. She admitted to phoning him sometimes at night, but only to talk business on occasions when he had been in a late meeting. She noted that the applicant was not the only broker with whom she spoke after hours. She denied ever telling the applicant that her husband was out of the house or inviting him in with any suggestive innuendo. She testified that at the time she had two small children at home and it would have been practically impossible to facilitate any illicit activity with the applicant at home.

63Kratiuk further testified that she never wore a sheer nightgown in front of the applicant and that there is no way the applicant could ever have seen her genitals in the office. She testified that she confronted the applicant about his wife’s call to her husband, Kris, and the accusation of infidelity with the applicant. Kratiuk testified that she told the applicant to work on his marriage and not to involve her in his domestic disputes. She invited the applicant to bring his wife to work and develop her profile as a broker with the company.

64Kratiuk testified that Tina Chopra’s belief that there was an illicit affair occurring between Kratiuk and the applicant did not affect her ability to work with the applicant. She testified that she made it clear that she was only interested in a professional relationship, she never spoke of personal matters, and did not reciprocate any of the applicant’s demonstrations of affection or attempts at romance.

65She testified that she did not like the applicant working for other firms, but she knew that she could force him to be exclusive to Noble. From 2003, he was already associated with Versatile, and in 2005 or 2006, he had associated himself with Desjardins, and maintained an outside Manulife contract. Kratiuk testified that she offered to make him Vice-President in order to persuade him to bring all of his business to Noble. She denied ever using threats or intimidation. The applicant was in high demand and had the power to decide what to do; she sought to make Noble the most attractive option by using carrots, not sticks.

66After the applicant’s employment was terminated, Kratiuk testified she believed she had a duty to report him to FSCO on the basis of the information that gave rise to the decision to terminate. She delivered that information to FSCO on October 29, 2008, the day after the termination. She testified that at that time she had no idea that the applicant would make the allegations of discrimination and harassment contained in the Application. She denied that the reporting to FSCO was in any way a reprisal against the applicant. She admitted that she did not seek to retract the letter to FSCO after rescinding the termination and accepting the applicant’s resignation. She described this as a practical decision based on the company’s interest in moving on, not as a change of opinion with respect to the applicant’s behaviour and the reasons for the termination.

Krzysztof Kratiuk

67Krzysztof Kratiuk (“Kris”) testified that he is the husband and business partner of Beata Kratiuk (“Kratiuk”) and that he is the trainer and recruiter for Noble Group. Like Kratiuk, he was trained as a lawyer in Poland. Since arriving in Canada, he has worked as a licenced broker, and handles more than 1,000 clients and $5 million in investments.

68Beginning around 2005 or 2006, Kris learned information that caused him some concern about the applicant’s ethics. First, he heard from Transamerica Life of Canada, an insurance company whose policies the applicant had been selling. Kris was informed that the company was cancelling its contracts with the applicant. This was cause for concern because, according to Kris, insurance companies do not cancel contracts with “good brokers”. However, due to confidentiality, the company would not disclose the reason for the cancelling.

69In 2007, Kris testified that he received notice from a second company, Standard Life, that it would be cancelling the applicant’s contracts. Again, when pressed for reasons, the company indicated that it was not at liberty to disclose. However, Kris testified that he was advised to keep an eye on the broker, the applicant.

70At around the same time, Kris testified that other Noble brokers began to complain to him that the applicant had attempted to sell insurance to their clients. Noble had a policy against competing with fellow Noble brokers. Kris spoke with the applicant, who claimed not to have realized that these individuals were already Noble clients. There was no evidence of deliberate client poaching.

71Following these incidents, Kris testified that he and Kratiuk decided to keep a closer eye on the applicant, and even directed their assistants to screen new applications from the applicant for suspicious activity. The Kratiuks were by this point very concerned about what they perceived to be a serious problem, but they lacked direct evidence.

72In October 2008, Kris testified that he was contacted by his client, Michael Fiala, who told him that he had recently signed an investment contract with the applicant. Fiala told Kris that the applicant had told him that Kris was no longer with Noble Group. He further told Kris that the applicant had been very pushy and even attempted to show him documentary evidence that Kris was no longer with the company. Around the same day, Kris testified that his assistant alerted him to three new policy applications on behalf of existing clients of other Noble brokers, but bearing the applicant’s signature.

73The culmination of these incidents is what led to the Kratiuks deciding that terminating the applicant’s employment was necessary to protect the business and their clients.

74Regarding the applicant’s relationship with Kratiuk, Kris testified that if anything, it was the applicant who sexually harassed women in the workplace and crossed boundaries of appropriate behaviour. He testified that the applicant bought Kratiuk gifts and flowers, and always sent postcards when travelling. Kris testified that his wife did her best to avoid being alone with the applicant. He always wanted hug her, while Kratiuk would try to push him away.

Margaret Kruzel

75Margaret Kruzel was employed as a secretary for Noble Group from August 2002 to February 2007. She subsequently obtained her RESP and insurance license and began working for Noble as an agent. She testified that she would be returning to employment with Noble the week following her testimony.

76Kruzel gave evidence about her impressions of the applicant. She described him as a “complex character” who had both positive and negative character traits, though on the whole she had a positive working relationship with him. She had no specific information about his professional competencies or performance, though she testified that he was hard working and attended at the office virtually every day.

77On the negative side, Kruzel testified that the applicant behaved in inappropriate ways with women. She described him getting drunk at the company Christmas party in 2004 or 2005. She testified that the applicant had been annoying her all night and then as she was approaching the stage to receive an award, he pressed up behind her and stepped on her skirt, causing it to tear and fall down. She testified that this was terribly embarrassing; she broke into tears and left the party early.

78Kruzel testified that she had never observed anything inappropriate between the applicant and Kratiuk, and noted that in her view Kratiuk made great efforts to maintain a professional workplace. She also testified that she had never heard Kratiuk make negative comments against East Indian people.

79She described the applicant’s relationship with Kratiuk as “love-hate”, from the applicant’s side. She did not believe that Kratiuk was in love with the applicant—only that she saw business opportunities in him and that she was trying to “tame” him. Kruzel testified that the applicant told her that Kratiuk had telephoned him once at midnight to entice him with news that her husband was not home. Kruzel testified that she did not believe the applicant.

80The applicant, on the other hand, would bring flowers for Kratiuk and would talk to Kruzel about Kratiuk like an emotional teenager. For example, she testified that the applicant told her about feeling angry because it was like Kratiuk was “cheating” when she would wear certain blouses that revealed her breasts. The applicant also fixated on Kruzel’s figure, once telling her in front of others that he could “see [her] boobs”.

Carmen Fascia

81At the time of hearing, Fascia was a 66-year-old financial advisor who had worked in association with Noble since 2001. She testified that she met the applicant in 2005. Fascia is ten years older than the applicant. She testified that the applicant received better treatment than the other employees. She even complained to Kratiuk about what she felt was unfairness to others by coddling the applicant.

82She testified that she never witnessed any discrimination or harassment in the workplace against the applicant or on the part of Kratiuk, on the basis of age or ethnicity. If anything, she felt the applicant was inappropriate in his dealings with women in the workplace. She observed that he was flirtatious—in her interpretation, lacing his language with sexual innuendo and being excessively “touchy”. She testified that he directed this behaviour towards her personally, and she also witnessed him acting similarly with the receptionist, Margaret Kruzel. This prompted Fascia to speak with Kruzel and to tell her not to tolerate the applicant’s “harassment”.

83Fascia testified that during a Christmas party in 2006 the applicant appeared to be quite drunk. He spilled wine on her and fell against her several times over the course of the evening. She testified that she left the party early in order to avoid having to confront him.

84Regarding race and ethnic factors, Fascia testified that the office was very multicultural, with about 80% being of some “ethnic” background. She described herself as “Italian”. She testified that she never witnessed any form of ethnic or racial discrimination.

FINDINGS

85I have not summarized all of the oral evidence in this hearing. There was additional testimony called from witnesses on both sides, including former clients and colleagues of the applicant. Much of this evidence is of limited relevance or value to the issues before me. These witnesses gave accounts of doing business with the applicant, provided general character evidence about the applicant and Kratiuk, and addressed the ethnic makeup of the office. There is nothing in any of that evidence that modifies, alters or supplements the evidence already surveyed. I do not give substantial weight to any of the character evidence.

86The factual findings in this case are central to the legal analysis because the differences in factual accounts are many, and the liability issues hinge on a clear understanding of what occurred. Credibility is pivotal to making such determinations. The applicant lacked substantial credibility, so to the extent that I accept any of his evidence, this will depend on additional corroborating evidence or obvious logic. On the whole, however, I was not persuaded of the truthfulness of the key allegations made by the applicant. In this section, I analyze the evidence in order to determine what happened in relation to key questions at issue in this case.

87I find that there is no objective proof that Kratiuk sexually solicited or harassed the applicant. The applicant’s own state of mind on this question was not consistent with a realistic assessment of the facts for a reasonable person in his situation. I do not believe that Kratiuk ever presented the applicant with an opportunity or an invitation to sex, and therefore any hope or fantasy of romantic possibility was not rationally grounded. Notwithstanding the misapprehensions the applicant entertained about Kratiuk, there was never an actual proposition or possibility of sex.

88A purely subjective interpretation of “body language” and supposed innuendo is not sufficient to establish the facts that constitute sexual harassment and solicitation, especially where those subjective perceptions are informed by sexist assumptions. I find that the applicant had difficulty interpreting the body language of his female co-workers, had a tendency to make inappropriate comments about their attire, and demonstrated something of a preoccupation with the female body. As a result, he lacked a capacity to interpret women’s behaviour in general, and Kratiuk’s behaviour in particular. It was this incapacity, and not Kratiuk’s behaviour directly, that caused the applicant to misinterpret his relationship with Kratiuk.

89I find that in fact it was the applicant who initiated the sexualisation of his relationship with Kratiuk, who in turn tolerated it, and possibly even encouraged it, in order to advance her business interests. In any event, any toleration or encouragement of the applicant’s affection by Kratiuk was not unwanted on the part of the applicant. On the contrary, the applicant welcomed any and all attention from Kratiuk. He was, it appears from the evidence, in love or infatuated with her. She, meanwhile, benefitted from his adulation.

90The applicant’s testimony about alleged “conditions” of employment, such as being forced to write love letters, give hugs, buy flowers and chocolates, and tell Kratiuk that he “loves” her, were not plausible. I do not accept that Kratiuk required these things. It is also not clear that the applicant actually produced weekly letters and gifts on the scale to which he testified. There was little physical evidence, and no witnesses offered credible corroboration of any such conditions. In any event, irrespective of the question of scale, the evidence affirms that the applicant was acting willingly and on his own accord.

91It appears that the applicant had the workplace reputation of being Kratiuk’s “favourite” because he earned top dollar. His behaviour with others at work was warm and affectionate, though at times he appeared a menace, unable to respect personal boundaries and lacking gender sensitivity or basic courtesy.

92Testimony about Kratiuk suggests that she was perceived as a cold and calculating businesswoman who would take advantage of anything, including the applicant’s affection, to make a profit. Margaret Kruzel, who worked closely with both Kratiuk and the applicant, had recently returned to work at Noble, and gave very credible, unbiased testimony. Responding to a question asking whether she believed that Kratiuk was in love with the applicant, Kruzel responded, “No. I’m not even sure she was in love with her husband.”

93Of course, Kratiuk did not need to be in love with the applicant in order to harass him or make sexual advances towards him. While I have not found that she did engage in such conduct, even if she had it is clear that, to the extent that any flirtation or sexualisation occurred, the applicant was a willing and active participant. Similarly, I find that any attention or gifts to Kratiuk were given voluntarily and consensually.

94The evidence about Kratiuk was consistent: she was an eminent professional. She testified credibly about the importance of professionalism in terms of building a good business reputation and being profitable. While she wanted to create conditions that would maximize the applicant’s earnings, she also defended her swift action when she determined that he was undermining her business. The claims Kratiuk made in testimony were supported by the evidence on the whole. The claims the applicant made, on the other hand, were mostly uncorroborated and simply implausible.

95The applicant’s own witnesses gave evidence that contradicted his account and undermined his credibility. For example, the applicant’s wife, Tina Chopra, testified that she did not believe her husband was truthful with her about his relationship with Kratiuk and about his reasons for staying at Noble. She was convinced that he was indeed having an affair with Kratiuk, and blamed the affair for wrecking their marriage. Anil Walia, a friend of the applicant’s, testified that he believed from his conversations with the applicant that he and Kratiuk had an “intimate relationship—more than friends” that was “not actualized sexually”. Walia believed that this was the primary reason for the applicant staying with Noble. He also testified that he believed the applicant was walking on a “tightrope” in terms of balancing his relationship with Kratiuk and his marriage to his wife.

96In his testimony, the applicant blamed Kratiuk for the deterioration of his marriage. Yet, the evidence suggests the applicant was lying to his wife, when the facts he now alleges could have saved his marriage. If the applicant did in fact believe he was being sexually harassed and threatened by Kratiuk, it begs the question why he would not have disclosed these facts to his wife in order to clear up confusion and assuage her unfounded insecurities.

97Tina Chopra testified that she could never understand why the applicant remained at Noble. She testified that the applicant was being pursued by many of the top firms, yet chose against all reason to stay with the company. She testified that she believed that her husband was under serious threat of reprisal because otherwise his decision to remain at Noble made no sense. She concluded that Kratiuk must have been using “sexual enticements” to convince her husband to stay. She also testified that the applicant told her that Kratiuk had invited him to move into her house. Tina assumed that implied a sexual relationship. In fact, the applicant never moved out of the house even after he and his wife separated, and Kratiuk denied ever making such an offer.

98It is clear that the applicant had every reason to leave Noble. I do not find that he faced any real threat of consequences at the hands of Kratiuk. To the extent that he claims to have feared dire consequences, I find such fears neither sincere nor reasonable. Kratiuk had no ability to force the applicant to do anything. Rather, I find the applicant chose of his own free will to stay with Noble at least partly in order to stay close to Kratiuk, for what appear to be emotional reasons.

99Regarding the allegations of race and ethnic discrimination, these allegations were supported by weak oral testimony. Papoutsis testified that Kratiuk referred to the applicant as a “dirty Paki” hundreds of times, virtually “every time she talked about him”. Papoutsis had significant grievances against Kratiuk, which undermined her credibility. No other witnesses corroborated this claim of repeated ethnic slurs. Rather, much more credible testimony described a multicultural, harmonious and professional workplace.

100More importantly, the applicant’s allegations of workplace racism lack coherence or plausibility. Many of the specific incidents allegedly occurred between 2002-2004. Therefore, if we accept the applicant’s account, racism was rampant from the very beginning of his employment. He described the racial slurs by Kratiuk as occurring nearly “every day”. Yet, there was absolutely no evidence of any adverse impact on the applicant’s dignity, or indication of it causing any disadvantage in the workplace. On the contrary, according to his own evidence as well as others’, the applicant continued to be given preferential treatment by Kratiuk. He was a top earner and believed, at the time, that Kratiuk was sexually pursuing him. It seems incongruous that such level of racist abuse could be occurring in tandem with the kind of persistent invitations to sex, which he also described as occurring “daily”.

101If the applicant was in fact being repeatedly taunted with racial and ethnic slurs over a period of several years, in addition to persistent sexual harassment, in his circumstances it is very difficult to believe that he was passive and silent. I cannot accept that these incidents were occurring and the applicant failed to object, complain or simply quit, given the lucrative alternative employment opportunities that were beckoning and the strains that were tearing his marriage apart.

102The applicant similarly failed to square Kratiuk’s alleged racism with her alleged proclamations of love and sexual desire. While such perverse concurrences may be theoretically possible, it is the applicant’s burden to establish a sufficient factual basis for me to make such findings. The evidence does not make plausible the applicant’s claims about Kratiuk’s behaviour.

103The applicant’s evidence failed to develop or establish any facts relevant to the claim of age discrimination.

104Regarding the allegations around reprisal and threats, I find no evidence that the applicant was, in fact, threatened or reprised against, or that he sincerely feared consequences at the hands of Kratiuk. The evidence points to the contrary conclusion: that the applicant was in control of his professional fate. He could take business anywhere, and it was the respondent that was striving to keep him. Kratiuk used carrots not sticks. She offered the applicant a management role to keep him with Noble. She tolerated him conducting work outside the firm, even though she would have preferred him to be exclusive. Kratiuk had no real power over the applicant, beyond the ability to terminate his employment.

105Also, reprisals require evidence of intent. As a finding of fact, temporally speaking, the applicant’s termination could not have been a reprisal because the applicant had not yet asserted any rights or claims under the Code. Similarly, the complaint to FSCO was made prior to the applicant raising any Code issue.

ANALYSIS

106In this section, I apply my factual findings to the relevant Code provisions in order to analyze the applicant’s allegations of Code breaches, and to explain the reasons for my conclusion that no breaches have been proved.

Sexual harassment and solicitation

107The Code provides:

10. (1) …

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

Harassment because of sex in workplaces

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.

108The key definitional element in relation to both harassment and solicitation, relevant to the analysis in this case, is the qualifier that the impugned action be “unwelcome” on the part of the applicant. This is a factual question that is directly at issue in this case. When the evidence is taken as a whole, it is clear that any attention from Kratiuk was not only wanted by the applicant, but was sought. The fact that Kratiuk tolerated or even encouraged the applicant’s fixation in order to further her own interests does not constitute unwanted sexual advances towards the applicant. While this may raise questions about Kratiuk’s ethical judgment, there is no Code breach in such facts.

109The facts, as I have found in relation to this issue, do not sustain a conclusion that the applicant was sexually harassed, sexually solicited, or reprised against for rejecting a solicitation. On the contrary, the applicant actively sought sexual attention from Kratiuk.

110Given the above conclusion, it is unnecessary for me to further analyze this issue.

Discrimination on the basis of age, race, ethnic origin and sex

111The Code provides:

Employment

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.

Reprisals

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

112The protection against discrimination is purposeful legislation. It is designed to prevent and remedy the dignitary harm caused by being treated differently because of a protected personal characteristic. The harm done to dignity occurs as a result of insult, burdens or disadvantages created by the differential treatment. In the case of the applicant, there is no basis to find any dignitary impact arising as a result of any proven facts. He suffered no disadvantage. He endured no insult. He was denied nothing, and conversely had every opportunity to advance professionally. He became a rich man. He endured no discrimination in employment.

113The first time the applicant raised Code concerns was when he filed this Application. This occurred well beyond the date of termination. Reprisal under the Code requires proof of intent to reprise. In this case, there could be no intent to reprise given there was no contemporaneous knowledge on the part of the respondent.

114In the light of these conclusions, the Application is dismissed.