Birchall v. Andres, 2013 HRTO 1469

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Birchall

Applicant

-and-

Juan Andres

Respondent

Decision

Adjudicator: David Muir

Date: August 29, 2013

Citation: 2013 HRTO 1469

Indexed As: Birchall v. Andres

Appearances

Amanda Birchall, Applicant ) Self-represented

Juan Andres, Respondent ) Jehuda Kaminer, Counsel

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex.

2A hearing was held in respect of this Application on August 27, 2013 in Kingston, Ontario. I heard from the applicant, Amy Birchall, Randy Shears and Joanne Palmateer. The respondent did not attend in person but was represented by counsel.

3For the reasons that follow I find that the applicant’s right to be free from discrimination on the basis of sex was infringed by the respondent. The applicant’s allegations of unwanted sexual advances and touching by the respondent, her employer, were unchallenged and I accepted the applicant’s affirmation that the allegations in her Application were correct. I also note that the respondent pled guilty to a charge of criminal harassment in respect of the same allegations. Various remedial Orders consequent to that conclusion are set out below.

Background

4In Interim Decision 2012 HRTO 48, dated January 10, 2012, this Application was deferred pending the resolution of the related criminal proceedings and was reactivated by Interim Decision 2012 HRTO 884. In this latter Decision the Tribunal also directed that the respondent file his Response within 35 days.

5The respondent failed to file a Response as directed by the Interim Decision. Instead on October 24, 2012, counsel for the respondent wrote to the Tribunal and advised that the parties had been actively negotiating a settlement. On December 17, 2012, the Tribunal wrote the parties and directed that the parties provide an update as to the status of settlement discussions by January 2, 2013. Both parties advised the Tribunal by emails dated January 22, 2013 that no settlement had been reached.

6On February 7, 2013, the Tribunal sent a letter to the parties directing that pursuant to the Interim Decision dated May 4, 2012, the respondent must file a Response by February 28, 2013. The respondent did not comply with this Direction.

7In Interim Decision 2013 HRTO 527, issued on March 27, 2013, the Tribunal directed that the respondent file a Response within 14 days of the Interim Decision and was reminded of the Tribunal’s Rule 5.5 which provides for the consequences where a respondent fails to respond to an Application. Ultimately on June 27, 2013, a Response was filed. The respondent did not deny any of the allegations of the applicant and accepts responsibility for his actions.

8The applicant filed a Request for Interim Remedy which was denied and a Request to Expedite the hearing, which was granted in 2013 HRTO 1289, and the following Directions were made:

a. The Request for an Expedited hearing is granted. The Registrar will schedule a one-day hearing in Kingston, between the date of this Interim Decision and August 30, 2013.

b. The parties will exchange any documents, witness lists and will-says upon which they intend to rely at the hearing no later than seven days before the date of the hearing.

9A hearing date was scheduled on August 27, 2013, in Kingston. On August 13, 2013, the respondent filed a note from his family physician indicating that he suffers from a medical condition which would prevent him from working for the foreseeable future. The note also indicates that he is undergoing changes in his medication regimen and is experiencing side effects from this. The physician opined that increased stress at this time would further adversely affect his mood and that he is not fit at this time to endure the stress of a “trial” for medical reasons.

10In a Case Assessment Direction issued to the parties on August 16, 2013, I noted that the respondent had not asked for an adjournment. I also noted that it was not clear that an adjournment was appropriate in the circumstances. I noted at that time that the respondent did not dispute the allegations of the applicant and accepted full responsibility for his actions. Accordingly it was not clear what his physician understood to be the nature of the proceeding or what was meant by a “trial”. The respondent never sought an adjournment and elected to attend by counsel and not on the telephone, an accommodation extended in further Case Assessment Directions issued on August 22 and 23, 2013.

11The hearing proceeded on August 27, 2013 in Kingston.

12At the outset of the hearing I confirmed with the respondent that as indicated in his Response he does not dispute the applicant’s allegations as set out in her Application. The applicant was affirmed and I asked her if the allegations in her Application were true and if she adopted the narrative in Question 8 of the Application as her evidence and she confirmed that she did. She was then examined by myself and counsel for the respondent.

13I find that the respondent had violated the applicant’s right to be free from discrimination in the workplace on the basis of sex.

14The provisions of the Code relevant to this Application are ss. 5, 7 and 10, which provide:

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

6. (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.

10. (1) In Part I and in this Part,

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

15In her Application the applicant made the following allegations:

1. On March 15, 2010, I was hired to work as an administrative assistant for lntegraspec Kingston. To the best of my knowledge, the company is owned by Mr. Juan Andres and his wife. The rate of pay was 14.00/hour. I am 23 years old, and was very excited to move from retailing to an office job, with an opportunity to gain some bookkeeping skills.

2. The business is a small family owned and operated construction company. The company makes buildings out of insulated concrete forms. At the time I was hired, the staff consisted of Mr. Andres, his wife Suzanne, an estimator named John Szurerk, three labourers and myself. My desk was located near the front door of the building, and there were three enclosed offices.

3. From March until October, 2010, Mr. Andres worked full time in Bancroft on a project. During that time, I saw him at most once a week, and was given most of my instructions over the phone or by fax.

4. In October, 2010, Mr. Andres attended my wedding.

5. In November, 2010, Mr. Andres returned to the Kingston office. At that time, he advised the estimator that he could expect to be laid off in January, and that he should start using his banked hours.

6. On December 23, 2010, I was sitting in a chair in front of Mr. Andre's desk. He came around his desk and sat next to me. We talked about business, and then he gave me a Christmas card, and a tight squeeze. I pulled away and then he kissed me on the lips. I told him I was uncomfortable with what he had done, and he said he was fine with that; that he would leave me alone in the future. I left work immediately.

7. I discussed this incident with my sister-in-law. We agreed that as this was the first incident, and he said he would respect my wishes in the future, I should return to work. I was nervous about losing or quitting a job until I could find something else, as my husband was starting school in January.

8. At the beginning of January, the estimator was laid off and Juan told his wife not to come in every day. She began to attend the office three times a week, often leaving Mr. Andres and I alone in the office. One day, he hugged me, and I pushed him away. He pulled me back into his arms and firmly said "don't push me away". I felt threatened physically, and was concerned that my job depended on my responses to his actions. I could not afford to lose my job, as my husband had just started school, and there was no other income in our household.

9. Mr. Andres asked me many times about our financial situation. He would talk to me with his face close to mine, and hold my shoulders while he spoke. He would comment on my clothing, and my hair. He also started touching me in uncomfortable ways. For example, he would reach over and move my hair out of my face. I tried my best to move away from him or jerk away from his hold. I was afraid to leave without another job, and was actively seeking new employment.

10. From February until April, most days I was alone in the office with Mr. Andres. Several times I noticed him watching me through the connecting window. Around the end of March, 2011, Mr. Andres reached for I necklace I was wearing, brushing his finger across my breast.

11. On April15, 2011, Mr. Andres called me into his office to take notes. I did not want to be alone in his office so I asked him to come to my desk, which was situated near the front door. I had started to turn the record button on my cell phone as a way to protect myself if he made any inappropriate advances. The phone was turned on when he arrived.

12. When he arrived, he stared to tell me what to put into a letter, and shortly afterward, walked around the desk and put his arm around my neck. He started to kiss me while holding my neck, preventing me from pulling away. He then kissed my chest and tried to kiss me again, forcing his tongue in my mouth. I tried to remain calm, fearing the situation could become worse if I made any other response. As soon as he left, I left and called my doctor's office. It was closed for the day. I called WSIB and spoke with a Belinda Betz. She advised me not to return to the office, and to file a police report. She also advised me to call Employment Standards, who advised me to contact Human Rights.

13. On April 15th, 2011, I filed a police report. That night he was arrested and charged with sexual assault. The case is currently going through the Criminal Justice system.

16The respondent was initially charged with sexual assault. An arrangement was made and approved by the applicant that resulted in his pleading guilty to criminal harassment in relation to these same incidents. There is a video recording of the April 15^th incident which was reviewed prior to these reasons being released. As indicated previously in his Response, the respondent acknowledged that he was fully responsible for his conduct.

17In my view the allegations of the applicant establish without any doubt that she was sexually solicited, harassed and assaulted by the respondent, her employer, on several occasions. In this regard I have adopted the analysis articulated by the Tribunal in Vipond v. Ben Wick’s Pub and Bistro, 2013 HRTO 685 at paras. 19 to 21, and in particular para. 21:

In order to establish a case of sexual harassment, the onus is on the applicant to prove, on a balance of probabilities, that (1) the individual respondent was her employer, her employer’s agent, or another employee; (2) the individual respondent harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed her in the workplace; and (4) the individual respondent harassed her because of her sex.

18I find that the applicant has met her burden of establishing that her right to be free of discrimination in employment on the basis of her sex was violated by the respondent. The actions complained of were that of her employer. The conduct was known or ought reasonably to have been known to be unwelcome – the applicant told him to stop and he acknowledged to her that his conduct was inappropriate, but it did not stop. The conduct was vexatious and the respondent understood that the applicant felt it was. The conduct was in relation to the applicant’s sex – the applicant was treated as an object of the respondent’s desires while in the workplace.

19I also find that the applicant was entitled to leave her employment. The conduct of the respondent was sufficiently egregious to justify her doing so. In my view no reasonable person would consider it appropriate for her to remain and endure the kind of behaviour exhibited by the respondent. I also observe that it appeared to be escalating. At a minimum it was not ceasing. The workplace was not safe for the applicant as a result of his conduct and she was right to treat her employment as at an end and leave the workplace when she did.

Remedies

20The remedial provisions of the Code are set out in section 45.2 (1), which provide as follows:

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:

1. 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.

2. 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.

3. 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.

Damages for Lost Wages

21The applicant claimed $29,120.00 in lost wages. This represents 52 weeks of wages. The applicant claims to have been unable to work for a full year after she left the respondent’s employment in April 2011. She testified that she was fearful, anxious and depressed. She was prescribed medications for depression and anxiety and began seeing a psychiatrist. She testified that for periods of time she could not leave her house and hid in her room. Her sister-in-law testified that on one occasion she came to the applicant’s home and found the door locked which was very unusual. When the applicant finally came to the door she said that she and her two dogs were hiding in the house where they could protect her.

22The respondent argued that the evidence of the applicant’s inability to work for that length of time is limited. No medical evidence was tendered to justify her incapacity for the entire period of time. The respondent also suggested that I should consider the fact that the applicant likely should have left the workplace earlier than she did and having failed to leave sooner must accept, to some degree, the consequences of that in respect of damages. In effect the respondent was suggesting that the applicant should have mitigated her damages sooner than she did by leaving the intolerable situation that she was in. The respondent did not suggest an appropriate period of time for which he should be responsible for the applicant’s unemployment but suggested that one year was too long. The respondent also noted the applicant’s evidence that she began looking for work when her employment insurance ran out and she found work within a few weeks.

23I accept the applicant’s evidence, confirmed by her other witnesses, that these events had a profound effect on her. I also accept her evidence that she was prevented from working or looking for work because of the emotional and psychological impact on her of the respondent’s conduct. I do agree with the respondent that there is no medical evidence to support her claim that she could not work for the entire period. I also note her evidence that what caused her to begin to look for work was the ending of her entitlement to employment insurance benefits. I do not accept the respondent’s submission that she bears some responsibility for some of her losses because she did not leave the workplace sooner than she did.

24I find that the applicant is entitled to an award of lost wages from April 15, 2011 to April 9, 2012, when she found work after looking for work for a month. Although it is possible that the applicant might have been able to begin to look for work somewhat sooner than she did, there is no substantial basis to question her evidence that she felt unable to do so until finally compelled by her family’s economic circumstances.

Damages for Non-Pecuniary Loss

25In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880. In Arunachalam the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:

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

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

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

26The considerations discussed in Sanford v. Koop are:

a. Humiliation experienced by the complainant

b. Hurt feelings experienced by the complainant

c. A complainant’s loss of self-respect

d. A complainant’s loss of dignity

e. A complainant’s loss of self-esteem

f. A complainant’s loss of confidence

g. The experience of victimization

h. Vulnerability of the complainant

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

27The applicant is entitled to compensation for the intangible losses she has experienced including losses to her dignity, feelings and self-respect. The applicant seeks $40,000. She argued that no amount of money can give her back her life and remedy the harm that has been done to her and her family. The applicant relied on a number of cases: Sanford v. Koop, 2005 HRTO 53; Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 695; Chard v. Newton, 2007 HRTO 36; and Gibson v. Sports Medicine Inc., 2003 HRTO 26.

28The respondent argued that these events have been a tragedy for all concerned. The respondent argued that without diminishing the harm done to the applicant these events have had consequences for the respondent and his family as well. The respondent did not propose an alternate damage award and simply noted that the amount sought by the applicant was at the extremely high end of such awards and was disproportionate to the harm experienced.

29I find that the applicant is entitled to $30,000 for damages to the applicant’s feelings, dignity and self-respect for the discriminatory treatment she experienced in this workplace in relation to the behaviour of the respondent. I accept the applicant’s evidence that she felt demeaned, degraded, humiliated and ashamed as a consequence of the respondent’s conduct.

30Amongst the other factors that I have considered in making this assessment is the nature of the conduct of the respondent. It was egregious in the extreme and persistent despite the applicant making clear from the outset that his conduct was unwanted and upsetting. The respondent’s conduct turned what had been an enjoyable work experience for the applicant into a nightmare. Her family members confirmed that it was apparent to them that something was wrong, although she only told her sister-in-law at the time.

31In considering the appropriate remedy I start with the conduct of the respondent. Unlike many cases of discrimination which can be unconsciously done or inadvertent in some sense, this behaviour was deliberate and persistent and an egregious display of power over the applicant’s person and body in the workplace. And despite the fact that the Tribunal no longer has the express power to award damages for mental distress when the conduct of a respondent was wilful or reckless, the fact that the conduct was deliberate and intentional is a factor that I find is appropriate to consider when assessing this head of damages.

32I also note that the applicant was forced to give up her employment when she was the primary breadwinner in her family – her husband being a student. The applicant is a young woman and while her age, she was 23 at the time, is not a huge factor, I have considered that the applicant was a young person with some but not a lot of life experience or experience in the workforce. The fact that she felt that she needed to consult with various government agencies about what she should do after the final assault of her in the workplace is telling. Being forced in those circumstances to endure what she endured and to make the kind of decisions she was required to make by the respondent’s conduct would reasonably have had a significant impact on her.

33The effects of the respondent’s behaviour on the applicant were not insignificant and have been long-lasting, affecting her ability to work for a considerable period of time. She testified that she has trouble sleeping to this day. She is fearful of men and is afraid to be alone in the presence of a man. For a period of time she would not attend her family doctor without her husband being present.

34The damage done has affected her relationship with her husband in a significant way. She testified that she could not be physically intimate with him for periods of time. She testified that this was frustrating for him and this has exacerbated her distress.

35As indicated above she became withdrawn and anxious. She would not leave the house for periods of time. The impact of her experience affected her relationships with her step-children and she and her husband had to cancel a number of family visits with the children.

36The applicant relied on a doctor’s note and a listing of her prescriptions which confirmed in a general way her evidence and that of her family about the emotional and psychological consequences of what she experienced in the workplace. The applicant testified that she was prescribed medications for depression and anxiety. She took these medications until she became pregnant in March 2012.

37I have reviewed the case law relied on by the applicant, in particular the case of Vipond, above, a recent Decision of the Tribunal which reviews the law in respect of damages in these kinds of cases. In my view this case falls at the higher end of the spectrum as discussed in those cases. In particular I find that the nature of the physical contact in this case was sufficiently persistent, and assaultive to justify the very large award I have made. The respondent touched her many times and in more overtly sexualized ways than in some of the other cases cited. The final incident on April 15, 2011, as described above, was an assault on the applicant and would have been significantly distressing for her and is more serious than in some of the cases. On the other hand the acts of the respondent in this case were somewhat less egregious than those found in others of the cases referred to in Vipond, above. So for example the nature of the contact and the violence associated with the assaultive behaviour in S.H. v M[…] Painting, 2009 HRTO 595, are qualitatively different than the experience of the applicant in this case, justifying a somewhat smaller award.

Orders for Future Compliance

38The applicant did not seek any Order for future compliance. In the circumstances none would be appropriate. The respondent is unwell, and according to a medical report filed in earlier in this matter and apparently generated in respect of the sentencing of the respondent, he is not likely to return to the workforce any time soon. It also appears that the small construction company in which the applicant worked is more or less wound up.

39The applicant seeks an apology. The respondent indicates that he accepts responsibility for what he had done and is remorseful. His counsel indicated at the hearing that he was instructed to offer an apology. I see no reason to make such an Order, even assuming that I have jurisdiction to do so.

40Finally the applicant sought an Order that any monies required to be paid be paid within 10 days of my Decision. The reasons for this request are similar to those which motivated the Request to Expedite, above. The respondent did not respond to this request but did note on more than one occasion that the respondent has no assets and no ability to respond to any monetary award. In all of the circumstances I see no reason why the applicant’s request should not be granted.

Orders

41The Tribunal makes the following Orders:

a. The respondent will pay to the applicant $29,120.00, the lost wages she would have earned for the period of 52 weeks from April 15, 2011, less any statutory deductions required by law.

b. The applicant is further entitled to pre-judgement interest on the award of lost wages in (a) above in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, calculated from October 15, 2011, roughly the mid-point of the period during which she would have been employed.

c. The respondent will pay to the applicant the sum of $30,000 in damages inclusive of interest for non-pecuniary losses arising from the violations of her rights under the Code.

d. The applicant is entitled to post-judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 10 days after the date of this Decision.