HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Suet Iu
Applicant
-and-
Markham Marble and Yeung Cho Fan
Respondents
DECISION
Adjudicator: Mary Truemner
Indexed as: Iu v. Markham Marble
APPEARANCES BY
Suet Iu, Applicant ) Self-Represented
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 28, 2010. She alleges that the respondents discriminated against her because of her sex, and that the personal respondent, Mr. Fan, sexually harassed her, made sexual advances and solicitations, and reprised against her for refusing his sexual solicitations and advances.
2On October 8, 2010, the Tribunal issued a Notice of Application and delivered the Application to the respondents. The respondents were advised that a Response must be filed with the Tribunal no later than November 15, 2010.
3On December 10, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 2458, as the respondents had not filed a Response, nor had the Tribunal’s correspondence been returned. The Interim Decision noted that where a respondent has failed to respond to an application, and pursuant to Rule 5.5 of the Tribunal’s Rules of Procedure, the Tribunal may deem the respondent to have accepted all of the allegations in the application and proceed to deal with the application without further notice to the respondent. The Tribunal ordered the respondents to file a Response by December 20, 2010, together with an explanation of why the Response was not filed earlier in accordance with the Notice of Application. The Interim Decision indicated that if a Response was not received by that date, the Tribunal may proceed without further notice to the respondents, and may take any or all of the steps set out in Rule 5.5.
4Having received no response of any kind from the respondents, the Tribunal decided to proceed without the participation of the respondents. In an Interim Decision dated March 29, 2011, the Tribunal deemed the respondents to have accepted all of the facts alleged in the Application and to have waived any right to participate in these proceedings. See Iu v. Markham Marble, 2011 HRTO 602.
5The applicant communicated to the Tribunal that she would like the hearing to be by way of teleconference. The Tribunal issued a Notice of Confirmation of Hearing on September 1, 2011, to the applicant, copying the respondents, scheduling a default hearing by way of teleconference for October 18, 2011. The applicant appeared on the conference call, but no one appeared for the respondents.
6The Tribunal deemed the respondents to have accepted all the allegations contained in the Application; however, the applicant still bears the onus of proving her allegations. Applications under the Code are decided on a balance of probabilities.
The Hearing
7At the hearing, the applicant and a Cantonese interpreter retained by the Tribunal were sworn in. The applicant confirmed that the contents of her Application were true.
8I asked the applicant to confirm that “Markham Marble” was the name of the company for which she worked. She said that she thought that the company was a numbered company and that she thought she had the proper name. She wanted to add the numbered company as a respondent. I asked the applicant if she wanted to adjourn the hearing in order to process a request to add the numbered company but she said that she did not wish to adjourn, and she withdrew her request to add a party.
9The applicant was a secretary for the respondents from April 3, 2006, until March 6, 2010. She worked in two areas: the principal one was the office, but she sometimes was called into the workshop area where granite and marble kitchen countertops were fabricated.
10The Application states that Mr. Fan was part-owner of the corporate respondent and “in charge” of the company. It alleges that Mr. Fan, who was also the applicant’s supervisor, made sexual advances and sexually touched the applicant. It states that, since the applicant began work with the respondents, Mr. Fan would regularly urinate in the workshop in front of her, instead of using the washroom, “to create a very embarrassing situation, … when he sees me, he would smile at me in a very perverted way but I can only pretend not to see anything.” The Application also states that he made sexual jokes and comments to her “mostly every week”, but the incidents specifically described in the Application occurred between July 2009 and January 2010.
11The Application states that the first incident occurred in July 2009 when Mr. Fan was in the workshop cutting a sink for a customer order. The applicant normally worked in the office, but she came into the workshop to drop off a project, and Mr. Fan asked the applicant if she would like to go to the roof of the workshop to see the birds. Despite her refusals, he was very persistent, and she relented so that he would stop bothering her. As she climbed the ladder to the roof, Mr. Fan put his hand on the applicant’s buttocks. She immediately kicked him away from her and climbed down the ladder. He told her he did not want her to fall down, but looked at her “with a perverted smile.” She reported the incident to another partner of the business, Mr. Lam, and he suggested that she be very careful and avoid going into the workshop without others around.
12At the hearing, the applicant could not provide an exact date for this incident, but confirmed that the above description was accurate, and added that when she was down from the ladder, she asked him angrily, “What are you doing?” and “Why were you touching my behind?” She said that he answered by saying that he was just trying to hold her because he really wanted her to see the birds.
13The Application goes on to describe Mr. Fan’s behaviour in August 2009 when he stood in front of the applicant’s desk with his fly unzipped. The second time he did this, the applicant pointed out that he forgot to do up his fly, and he laughed, saying that “it” is too big. At the hearing, the applicant could not provide an exact date, but believes it was in the first week of August 2009.
14The Application goes on to describe another incident occurring the same week as the unzipped fly events. Mr. Fan walked up to the applicant’s office when no one else was around and started a conversation “using very descriptive sexual materials” which made her so uncomfortable that she pretended she needed to go to the washroom to leave. At the hearing, the applicant testified that she used the words “sexual materials” in her Application because when Mr. Fan invited her to look at his penis, she glanced at his pants, and it appeared that he had put some Kleenex or stuffing in his pants to make him look bigger. She said that he was laughing in an “evil” way when he asked her to take a look. She testified that he also invited her to be his mistress, and told her that his wife has mental problems. The applicant testified that she was scared and again went to the washroom to avoid Mr. Fan.
15The Application states that Mr. Fan often asked the applicant to “follow” him or “get together with him” and that the applicant feels it is because she is divorced. Mr. Fan often told the applicant that his wife is mentally disabled in the context of his solicitations, and the applicant decided to talk to his wife between December 2009 and January 2010 in an effort to stop the harassment. Mr. Fan then approached her as “he realized that [the applicant] wanted to leave the company,” and promised her a raise if she stayed. In her testimony, the applicant explained that she told Mr. Lam that she wanted to leave, that he knew about the sexual harassment, and he must have told Mr. Fan. She did not get the raise when the next payroll came.
16The applicant testified, in keeping with the Application, that Mr. Fan’s wife did not get involved, but after their conversation, the applicant received a lawyer’s letter accusing her of threatening Mr. Fan. She no longer has the letter, but remembers that it said that Mr. Lam did not promise to give the applicant a raise, and it warned the applicant not to do anything to harm the company or the company would make her legally responsible. The letter did not describe what it meant by “harm the company”, but it appears that the lawyer writing it thought that she was doing something wrong with respect to obtaining a raise. It did not mention her allegations of sexual harassment, and without a copy of the letter or evidence of the author, it is impossible to accurately describe or understand the letter’s contents. As the applicant is not alleging that the letter constitutes an infringement of the Code, I do not consider it my analysis below.
17The next incident described in the Application is one that occurred on January 5, 2010, when a particular customer named Alana Sil came to the office to order a washroom vanity top. While the customer was present, Mr. Fan yelled at the applicant for providing a quote that he thought was too low. He swore in Chinese in “using very descriptive sexual materials [sic] words.” The Application states that he often swore at the applicant in Chinese in front of customers who were not Chinese.
18At the hearing, I asked for clarification as to what words Mr. Fan used when swearing at the applicant. The applicant said that she did not want to speak the words because she was too embarrassed, but I insisted that I must know what she meant by “sexual materials words”. She stated in Cantonese what Mr. Fan had said which the interpreter interpreted into English as follows:
Fuck you. What the fuck are you doing in front of the customer? You smelly cunt. You can take off.
19The applicant, who works in English and Cantonese for another employer now, confirmed that the quote above is an accurate interpretation. She also testified that he used this kind of language in Cantonese against her throughout January, February and March until she was laid off due to the company changing hands.
20The applicant testified that in March 2010, prior to being laid off, Mr. Lam called her and asked if Mr. Fan was still harassing her, so she thinks that another reason that Mr. Fan laid her off was that he wanted to stop her from really describing to Mr. Lam all the sexual harassment. She admitted, though, that she does not know this, and has no evidence to prove it. She also admitted that Mr. Fan was not involved in the company that took over the new business, and her Application states that Mr. Lam left the business December 31, 2009.
21The applicant testified that she was “really scared” by Mr. Fan, who she tried to ignore, but she had to endure his sexual taunting because “he was the boss.” She never knew when he would come to her desk and expose his unzipped crotch to her, or, later, yell sexually specific profanities at her. She explained that she had to face him every day, but, when he was not around, she would check the washroom before using it to make sure that he was not hiding there. She said that she was worried all the time that he would fire her for ignoring his sexual remarks and behaviour. As a single mother, she had no one at home to talk to about Mr. Fan’s harassment. She said that she called Mr. Lam, her former boss and one of the previous partners of the company, and talked about it, but he could not help her. She felt helpless.
Analysis
22Section 5(1) of the Code provides:
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, age, record of offences, marital status, family status or disability.
23Section 7(2) and (3) provides:
(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
(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.
24Section 8 provides:
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.
25I have accepted the applicant’s evidence with respect to her description of the incidents. She appeared honest in her hesitations, explaining at times that she was embarrassed to describe certain exchanges with Mr. Fan, and explaining at other times that she could not remember certain details like dates. She explained that she felt that she could not challenge Mr. Fan, a part owner of the business employing her, and risk losing her job because she is a single mother and the only person financially supporting her family. In these circumstances, where she was not contemplating litigation while working with the respondent and therefore not documenting the incidents, and where the hearing occurred approximately 18 months after the applicant stopped working with Mr. Fan, it is understandable that she cannot remember every detail. I do not find that the applicant’s admission that she cannot remember certain details makes her testimony less credible. She described what happened with respect to those incidents listed in the Application very clearly and with detail.
26The applicant kicked Mr. Fan’s hand away when he placed it on her buttocks, she ignored him when he repeatedly highlighted his penis and referred to his penis as big, keeping his fly undone. After he persisted in asking her to be his mistress, she told his wife that he was making sexual advances. I find that the personal respondent’s advances, jokes, innuendo, and touching were unwelcome and they were obviously sexual in nature. They were repetitive and persistent. I also find that the egregious epithet “smelly cunt” that the personal respondent used when he criticized the applicant’s work from January to March 2010 is a gendered term and is sexually demeaning. See Farris v. Staubach Ontario Inc., 2011 HRTO 979. I therefore find that the personal respondent discriminated against the applicant because of her sex, and sexually harassed and made sexual advances towards her. I find that his sexual advances, jokes, innuendo, and touching created a poisoned environment which constitutes discrimination because of sex.
27The applicant’s evidence, however, does not establish that the reason she did not get a raise just prior to the sale of the company was because she refused Mr. Fan’s advances, or because she told Mr. Lam or Mr. Fan’s wife about the discrimination and harassment. To the contrary, she testified that she believed Mr. Fan offered the raise to encourage her to stay because she believed that Mr. Fan knew of her plans to leave. It would appear from the evidence that any promise Mr. Fan made to raise the applicant’s salary was made rashly by Mr. Fan who was worried about the complaints the applicant made to his wife and/or ex-partner. The applicant did not provide evidence that any further sexual advances were made between the time Mr. Fan offered the raise and the time her employment was terminated. In fact, from January 2010 to March 2010 when her employment was terminated, Mr. Fan was no longer making sexual advances towards the applicant, but was instead yelling abuse at her. I do not find that the applicant was reprised against in terms of not receiving a raise because she refused sexual advances or solicitations.
28I also cannot find that the applicant’s employment was terminated as reprisal for having refused sexual advances or solicitations instead of “shortage of work”, the reason provided by the respondents at the time of the termination. The evidence of the applicant herself was that the new company that took over the business did not keep any of the corporate respondent’s employees. Even Mr. Fan left. In this context, without more evidence with respect to the arrangement between the respondents and the new company, I cannot conclude that the discrimination, the harassment or the refusal of Mr. Fan’s sexual solicitations and advances was a factor in the decision to terminate the applicant’s employment.
29Having found that the personal respondent, part owner of the corporate respondent and the applicant’s supervisor, sexually harassed and made unwanted sexual advances towards the applicant, and having found that he discriminated against the applicant because of her sex by creating a poisoned work environment and by taunting her with the gendered derogatory epithet, “smelly cunt”, I must consider the applicant’s request for general damages.
Remedies
30The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 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, feeling 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.
Injury to Dignity, Feelings and Self-respect
31The applicant seeks $30,000 as compensation for her suffering while she worked in the poisoned environment created by Mr. Fan, enduring and avoiding his advances and harassment.
32In Arunchalam v. Best Buy, 2010 HRTO 1880, at paras. 52 to 54, the Tribunal summarized some of the considerations relevant to an assessment of damages to be awarded under s. 45.2 of the Code:
I turn now to the relevant factors in determining the damages in a particular case. 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.
33As stated in Hill-Leclair v. Booth, 2009 HRTO 1629, in reference to Domingues v. Fortino, 2007 HRTO 19; Sanford v. Koop, 2005 HRTO 53; Colvin v. Gillies Hillcrest Variety, 2004 HRTO 3:
Historically, sexual harassment under human rights statutes has tended to attract a comparatively higher quantum of damages than simple discrimination… This can be rationalized by the vulnerability of victims, the heightened personal impact and the more severe dignity interests implicated.
34General damages for cases of sexual harassment where the applicant’s supervisors or bosses were the harassers, or where they solicited sexual relations with their employees, have been as high as $30,000 as proposed by the applicant. See Farris, supra. In S.H. v. M[...] Painting, 2009 HRTO 595, more was awarded, but I note that the harassment in that case was found to be a factor in the termination of the applicant’s employment. High general damages can be awarded even where discrimination and harassment were found not to be a factor in the termination of employment. See Harriott v. National Money Mart, 2010 HRTO 353. However, the applicant in this case provided reasons in her Application to justify her request for $30,000 which are related more to what she suffered in losing her employment and consequently her income, rather than her suffering for enduring Mr. Fan’s behaviour and comments. Having found that no Code violation was a factor in the termination of her employment, I am not prepared to grant the full amount she seeks.
35The applicant’s testimony at the hearing made clear her immense distress at having to endure the harassment and discrimination during her employment with Mr. Fan. It was also clear that she felt very vulnerable working with Mr. Fan as a single mother. I find that she suffered injury to dignity, feelings and self-respect. However, the applicant offered no testimony with respect to any residual suffering after she ceased working with Mr. Fan other than her financial difficulty. It does not appear that her distress with respect to the poisoned environment and Mr. Fan’s behaviour was long-term. I am therefore satisfied that $20,000 as compensation for injury to dignity, feelings and self-respect is an appropriate award.
Order
36The Tribunal orders:
Within 30 days of the date of this decision, the respondents shall pay, jointly and severally, to the applicant the sum of $20,000 as monetary compensation for injury to dignity, feelings and self-respect; and,
Post-judgment interest shall accrue on the above amount at a rate of 3.0% per annum commencing 30 days after the date of this decision;
Dated at Toronto, this 11th of January, 2012.
“Signed by”
Mary Truemner
Vice-chair