Morgan v. University of Waterloo, 2013 HRTO 1644

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Morgan

Applicant

-and-

University of Waterloo and David Mackay

Respondents

DECISION

Adjudicator: Eric Whist

Date: October 1, 2013

Citation: 2013 HRTO 1644

Indexed as: Morgan v. University of Waterloo

APPEARANCES

Tracy Morgan, Applicant

Self-represented

University of Waterloo and David Mackay, Respondents

Ted Kovacs, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex. The Application further alleges that the applicant’s rights to claim and pursue her rights under the Code without reprisal were infringed.

2The applicant, Tracy Morgan, and the personal respondent, David Mackay, are employed as counsellors in the Counselling Services Department of the institutional respondent, the University of Waterloo (the “University”). An overview of the events that gave rise to the Application is as follows.

Events of June 16, 2009

3Dr. Morgan alleges that Mr. Mackay sexually harassed her on June 16, 2009, while they were attending a dinner and dance at the annual conference of the Canadian Association of College and University Student Services (CACUSS). This was the conference’s principal social event and was attended by hundreds of conference participants, including a number of counsellors from the University’s Counselling Services Department (or “Counselling Services”). The conference was being held on the campus of Sir Wilfred Laurier University in Waterloo.

4Dr. Morgan alleges that at approximately 11:25 p.m., she and Kathy Winter, another counsellor from Counselling Services, were discussing leaving the event. She alleges Mr. Mackay overheard this conversation and subsequently kissed Dr. Winter on the cheek as a farewell gesture before turning to do the same to Dr. Morgan. Dr. Morgan alleges that she crossed her arms in an emphatic gesture to indicate to Mr. Mackay that she did not want to be kissed by him. She alleges that, nonetheless, Mr. Mackay proceeded to come closer, put his right arm around her waist and then slide his right hand down to her buttocks and apply pressure with his hand. She alleges that she responded to Mr. Mackay’s actions by elbowing him. Dr. Morgan alleges that it is the touching of her buttocks without consent that constitutes the sexual harassment on June 16, 2009, that gives rise to her Application.

5Mr. Mackay denies Dr. Morgan’s allegations, stating that he did not touch Dr. Morgan after she indicated that she did not want a kiss or hug. The respondents submit that Dr. Morgan has failed to meet her onus to show that, on a balance of probabilities, that the evidence substantiates her claims.

Investigations by the Waterloo Regional Police Services and the University

6Dr. Morgan met with Dr. Ruttan, the Director of Counselling Services, on June 17 to report her allegations about Mr. Mackay’s actions from the previous evening. On June 18, Dr. Morgan met with Dr. Ruttan and other University officials to again outline her allegations. On June 18, there was a discussion about the University’s process for addressing complaints of sexual harassment and Dr. Morgan’s other options.

7Dr. Morgan was informed that she could ask for an investigation by the University or could pursue criminal charges against Mr. Mackay. She was told that if she chose to pursue criminal charges the University would not conduct a concurrent investigation.

8On June 29, 2009, Dr. Morgan filed a complaint of sexual assault against Mr. MacKay with the Waterloo Regional Police Services (“WRPS”). Constable Ranta of the WRPS conducted an investigation that included interviews with Dr. Morgan, Dr. Winter and two other Counselling Services counsellors who had been present at the CACUSS social event on June 16. Mr. Mackay declined to be interviewed by Constable Ranta on the advice of his criminal counsel.

9Dr. Ruttan assigned Mr. Mackay to work out of a satellite office until the completion of the WRPS’s criminal investigation in order to minimize contact between Mr. Mackay and Dr. Morgan. Previously, Mr. Mackay and Dr. Morgan had both been working in the Counselling Services’ principal office which is located in the University’s Needle Hall.

10The WRPS investigation took approximately five weeks. At the conclusion of the investigation Constable Ranta informed Dr. Morgan that she had two options; she could pursue criminal charges or choose to have Mr. McKay cautioned by the police. Dr. Morgan chose for Mr. Mackay to be cautioned. Mr. McKay, on the advice of his criminal counsel, chose not to meet with Constable Ranta and as a result was not cautioned.

11On August 5, 2009, Dr. Morgan wrote to Dr. Ruttan asking that the University conduct an investigation of her allegations about Mr. Mackay’s conduct on June 16 under Policy 33, the University’s anti-discrimination policy. Dr. Ruttan asked Dr. Morgan to set out her allegations in writing, which she did in a letter dated August 25, 2009. Dr. Ruttan also determined at this time that Mr. Mackay would continue to work out of a satellite office until the University’s investigation was completed.

12The investigation was conducted by Matt Erickson, the Director of the University’s Office of Conflict Management and Human Rights. Matt Erickson interviewed Dr. Morgan, Mr. Mackay, Dr. Winter, and five other members of the Counselling Services Department who had been present at the dinner and dance on June 16 and/or had contact with Dr. Morgan at the conference on June 17. Mr. Erickson prepared an investigation report dated January 30, 2010, which included a summary of his findings. He submitted the report to Dr. Ruttan. Dr. Ruttan, as the Director of Counselling Services, was responsible for making the determination as to whether Mr. Mackay’s conduct breached the sexual harassment provisions of Policy 33.

13On February 12, 2010, Dr. Ruttan wrote to Dr. Morgan to state that the University had completed its review and investigation and that “the investigation revealed no direct evidence to substantiate your allegations of sexual harassment and thus, no firm conclusions were reached.” Dr. Ruttan’s letter indicated that Mr. Mackay would return to work in the Counselling Services’ office in Needle Hall shortly. The letter also expressed Dr. Ruttan’s interest in Dr. Morgan and Mr. Mackay re-establishing a professional relationship and Dr. Ruttan’s willingness to assist in a plan to facilitate that process.

14Dr. Morgan alleges that the University’s investigation of her June 16 allegations was inadequate and unreasonable and that consequently the University failed in its Code-mandated duty to investigate her claim of discrimination. Dr. Morgan alleges that Dr. Ruttan’s February 12, 2010 decision failed to follow the findings and conclusions of Mr. Erickson’s investigation report and wrongly concluded that Dr. Morgan was required to provide additional or third party evidence to substantiate her claim. Dr. Morgan submits that Dr. Ruttan should have been prepared to make an assessment of her and Mr. Mackay’s credibility and to make a determination as to what happened on June 16 based on a balance of probabilities. She submits that there are other problems with the University’s investigation, including that it took too long and that the University did not return her to a healthy work environment.

15The respondents submit that the University did meet its duty to investigate the events of June 16 and that Dr. Ruttan’s decision that Dr. Morgan’s allegations of harassment were not proven was based on a determination that the applicant had not met her onus to prove that, on a balance of probabilities, she had been harassed, as claimed.

Events after February 24, 2010

16Mr. Mackay returned to the Counselling Services’ office in Needle Hall on February 24, 2010. On March 2, 2010, Counselling Services held a potluck lunch at which Dr. Morgan and Mr. Mackay were both present. Dr. Morgan alleges that Mr. Mackay stood inappropriately close to her and in a manner that deliberately violated her personal space. Dr. Morgan alleges this is was an act of sexual harassment and reprisal for the applicant’s earlier sexual harassment complaints.

17Dr. Morgan alleges that on six occasions during the period of March 5, 2010 to April 6, 2010, Mr. Mackay passed her in the Counselling Services’ narrow hallways without moving to the side of the hallway to facilitate their passing of each other, as was the established departmental practice. Dr. Morgan alleges Mr. Mackay’s refusal to move to the side of the hallway was deliberate and done in order to violate Dr. Morgan’s personal space and boundaries and affect Dr. Morgan’s sense of emotional and physical safety. Dr. Morgan alleges that these repeated actions on six different occasions constitute further acts of sexual harassment and additionally are acts of reprisal by Mr. Mackay for Dr. Morgan having complained that Mr. Mackay sexually harassed her on June 16, 2009.

18Mr. Mackay denies these allegations. He submits he did come close to Dr. Morgan at the potluck lunch but this was because he happened to enter into a conversation with a colleague who was standing near to where Dr. Morgan was located. He submits he did attempt to move aside and avoid any possible contact with Dr. Morgan when they passed each other in the hallway on the six occasions identified by Dr. Morgan.

19Dr. Morgan made a number of written complaints to Dr. Ruttan about Mr. Mackay’s actions when he encountered Dr. Morgan in the hallway as well as about Mr. Mackay’s conduct at the potluck lunch. Dr. Morgan alleges the University’s responses to her allegations were inadequate. She alleges that the University did not appropriately consider her complaints as complaints of sexual harassment and reprisal and consequently the University failed in its duty to investigate her allegations about Mr. Mackay’s discriminatory behaviour after February 25, 2010.

20Dr. Morgan also alleges that the University’s failure to appropriately consider and investigate her complaints about the potluck lunch and hallway incidents constitute acts of reprisal contrary to the Code. Dr. Morgan further alleges that Dr. Ruttan’s May 25, 2010, letter directs her to stop conjecturing that Mr. Mackay might make physical contact with her and that she is not to report any further incidents involving Mr. Mackay unless they involve physical contact. Dr. Morgan alleges this restriction on being allowed to complain in future about possible harassment by Mr. Mackay is a further act of reprisal.

21The respondents deny these allegations. They maintain that the investigation of Dr. Morgan’s allegations was reasonable, noting that these allegations were not made under the University’s formal anti-discrimination policy, Policy 33, but rather were made to Dr. Morgan’s department director, Dr. Ruttan. They deny that any of the University’s actions in response to Dr. Morgan’s complaints about Mr. Mackay’s conduct in February and March 2010 constitute reprisal.

22Mr. Mackay had additional responsibilities in Counselling Services. He regularly served as the department’s acting director in Dr. Ruttan’s absence. He was the Co-ordinator of Training and Supervision, a position that is instrumental in determining which Counselling Services’ staff will supervise an intern. He was also the Co-ordinator of Study Skills, a position that involved the assignment of counsellors to present workshops. The applicant alleges that a further concern she expressed to the University was about Mr. Mackay’s ability to exert authority over her in these roles. Dr. Morgan maintains the University should have taken steps to ensure Mr. Mackay did not have this authority over her in light of the events of June 16.

23Dr. Morgan alleges that Mr. Mackay’s sexual harassment on June 16, 2009, negatively affected her emotional and mental health and caused her to become hyper- vigilant and anxious about any encounters with Mr. Mackay after June 16. I had evidence before me that the symptoms displayed by the applicant following June 16 are consistent with Post Traumatic Stress Disorder (“PTSD”). I do note here that Dr. Morgan did not identify having a medical condition or disability and/or that she needed accommodation other than having a need for reduced hours during the period September to December 2009 because of stress. Dr. Morgan’s request for these reduced hours was granted.

The Hearing

24At the hearing I heard testimony from 11 witnesses, including Dr. Morgan and Mr. Mackay. Dr. Morgan called three additional witnesses: Constable Ranta of the WRPS; Kristine Maier, a counsellor in Counselling Services who met with Dr. Morgan on June 17; and Dr. Heimpel, a psychologist who provided counselling to Dr. Morgan beginning in October 2009.

25In addition to Mr. Mackay the respondents called six other witnesses: Dr. Ruttan; Dr. Winter; Mr. Erickson; David Logan, a councillor from Counselling Services who was present at the dinner and dance on June 16; Jeanette Gascho, a councillor from Counselling Services who was present at the March 2, 2010 potluck lunch; and Chris Goss, a Staff Sargent of the University of Waterloo Police who was present at the June 18, 2009 meeting to discuss Dr. Morgan’s allegations of harassment and her complaint options.

26The parties disclosed extensive documentary evidence. This included video recordings of the interviews conducted by Constable Ranta as part of the WRPS investigation, three of which were viewed during the course of the hearing (the interviews with Dr. Morgan, Dr. Winter and Mr. Logan). I had documents from Mr. Erickson’s investigation including his written interview questions and recorded answers and a large number of letters and emails exchanged between Dr. Morgan and University officials, primarily Dr. Ruttan. I also had case law provided by the parties for my consideration. The parties provided their final submissions in writing.

DECISION

27The Application is allowed, in part. I find that the Mr. Mackay did sexually harass Dr. Morgan on June 16, 2009, when he physically touched her in a manner that he ought to have reasonably known to be unwanted. I find Mr. Mackay is solely liable for the compensation I have awarded to Dr. Morgan.

28I find that the University’s subsequent investigation and response to the June 16, 2009 allegations of sexual harassment were reasonable and that the University did meet its Code-mandated duty to investigate.

29I do not find that Mr. Mackay harassed Dr. Morgan at the March 2, 2010 potluck lunch or on any of the six occasions Mr. Mackay and Dr. Morgan encountered each other in the hallways between March 5 and April 6, 2010. I do not find that Mr. Mackay’s actions on these occasions constitute reprisal under the Code.

30I do not find that the University failed in a duty to investigate Dr. Morgan’s allegations concerning the potluck lunch and hallway incidents.

31I do not find that the University’s actions in responding to Dr. Morgan’s allegations about the potluck lunch and hallway incidents constitute reprisal under the Code.

THE LAW

32Subsections 5(1) and 5(2) of the Code provide that:

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, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

33It was not disputed that while the events of June 16, 2009, took place during a social occasion at a conference held away from the respondent’s workplace that these are events “with respect to employment” pursuant to section 5 of the Code. I agree that this is the case. The Tribunal has found that the Code can apply to events involving employees and employers that transpire away from a place of employment and outside of normal working hours. See Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421.

34Harassment is defined in section 10 of the Code:

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

35It was not disputed that a finding that Mr. Mackay touched Dr. Morgan’s buttocks would meet the definition of harassment in Section 10 of the Code.

36Section 8 of the Code provides that:

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.

37The legal onus or burden is on Dr. Morgan to bring forward sufficient evidence to prove that she experienced harassment, discrimination and/or reprisal in violation of the Code.

38In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See Noble v. York University, 2010 HRTO 878.

39The standard of proof is on the balance of probabilities, which means that the Tribunal must determine whether it is more likely than not that the violations of the Code alleged by Dr. Morgan occurred. The Supreme Court of Canada confirmed in F.H. v. McDougall, 2008 SCC 53, that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent”.

40To determine whether the Code was violated in the present case I must make findings of fact based on an assessment of the evidence and the credibility and reliability of the conflicting accounts of what took place. In making my assessment of credibility, I have relied on the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), in particular the following comments:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. (p. 356-357)

41I have also relied on the observations on credibility and reliability made in R. v. Taylor, 2010 ONCJ 396, cited by the Tribunal in Soheil-Fakhaei v. Canadian Business College, 2012 HRTO 172, as follows:

“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable. (R. v. Morrissey, para. 205)

Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 3 S.C.R. 3, at para. 65.

THE EVENTS OF JUNE 16, 2009

42I heard extensive evidence about the evening of June 16, including evidence as to what took place before, during and immediately after the CACUSS dinner and dance. I do not need to summarize this evidence. I will only refer to the evidence I need to for the purposes of my decision.

43There is not much dispute about events that took place earlier in the evening of June 16. Dr. Morgan and Mr. Mackay had dinner at separate but nearby tables. They did not generally interact. Both described the evening as convivial. Both of them knew many of the conference participants as both had served on the CACUSS executive and Mr. Mackay was a past president of the organization.

44It is not disputed that early in the evening Dr. Morgan had come by the table at which Mr. Mackay was sitting with Dr. Winter, and that Mr. Mackay commented to Dr. Morgan that she was wearing a pretty dress.

45It was also not disputed that after the dinner Mr. Mackay spent a great deal of his time on the dance floor (both before and after the alleged incident) dancing with a number of partners including Dr. Winter.

46I did hear extensive evidence about the consumption of alcohol. Dr. Morgan testified that she did not drink at all. This was not disputed. I heard evidence that Mr. Mackay and Dr. Winter had been drinking. How much they drank and to what affect was very much in dispute.

47Mr. Mackay acknowledged that he had been drinking and that at the end of the evening he had been told by a bartender that he was “cut off”. Dr. Winter testified that she had been drinking moderately. Dr. Morgan attempted to establish through her own testimony and her cross-examination of Mr. Mackay and Dr. Winter that Mr. Mackay and Dr. Winter had significant amounts to drink. It was a central contention of Dr. Morgan’s that Mr. Mackay and Dr. Winter had been drinking to the degree that their judgment and memory were impaired and that, accordingly, greater weight should be given to her account of events.

48I am prepared, as I stated during the hearing, to accept a general claim that alcohol consumption affects memory and that the increased consumption of alcohol may have a greater effect on memory. However, I am not prepared to find Mr. Mackay and Dr. Winter are less reliable or credible witnesses in the present case simply because they had been consuming alcohol. I do not know the amount of alcohol they may have consumed and more importantly the degree to which their alcohol intake may or may not have affected their memories and their behaviour. What I do know is that there was evidence that different witnesses had different degrees of recollection, which I have considered in my determinations. Specifically, I have given less weight to portions of Dr. Winter’s testimony on the basis of her incomplete recollection of events. Mr. Mackay claims to recall a specific sequence of events when he interacted with Dr. Morgan notwithstanding his level of alcohol consumption. I have considered these recollections on their face.

49I also heard evidence about a contentious incident that occurred immediately before the alleged harassment involving Mr. Mackay and Dr. Winter. The issue was whether Mr. Mackay, while beside the dance floor, may have been down on one knee before Dr. Winter with his hands on her hips shaking his head in a light hearted gesture to signal that she should not leave, as was maintained by Mr. Mackay, or whether Mr. Mackay may have been down on one knee with his hands on Dr. Winter’s buttocks and shaking his head to simulate having oral sex with her, as alleged by Dr. Morgan. Dr. Winter testified she did not remember Mr. Mackay being down on a knee before her or Mr. Mackay touching her in any manner. She did testify that she would have remembered if Mr. Mackay had been touching her buttocks as maintained by Dr. Morgan.

50I am of the view that I do not need to make a finding as to what happened between Mr. Mackay and Dr. Winter beside the dance floor. Dr. Winter has not alleged that Mr. Mackay harassed her such that I have to make a finding as to whether her Code rights have been violated. I am of the view that a finding that Mr. Mackay did simulate oral sex with Dr. Winter would not necessarily assist in my determination as to whether he harassed Dr. Morgan. I can and have determined that Mr. Mackay did harass Dr. Morgan without relying on a finding that he was simulating oral sex with Dr. Winter. Conversely, I am of the view that if I was to find that Dr. Morgan was wrong when she alleged that Mr. Mackay inappropriately touched Dr. Winter, this would not lead me to find that her evidence about what happened between her and Mr. Mackay was less credible or reliable. In my view Dr. Morgan’s ability to accurately interpret what she may have seen happen between Mr. Mackay and Dr. Winter is unrelated to the reliability of her testimony about being touched by Mr. Mackay. The issue of Mr. Mackay touching Dr. Morgan’s buttocks does not involve a question of perception that is whether Dr. Morgan may have misinterpreted what occurred. Mr. Mackay either touched Dr. Morgan’s buttocks or he did not.

51Dr. Morgan testified that after viewing Mr. Mackay on his knee before Dr. Winter, she approached Dr. Winter to ask her about leaving the event. She testified that Mr. Mackay saw her approaching and had got up from being on one knee with some difficulty, which Dr. Morgan attributed to Mr. Mackay’s alcohol consumption. She testified that Mr. Mackay said to her “Oh Tracey, you are so beautiful, so beautiful, that’s such a beautiful dress”. Dr. Morgan testified that when Mr. Mackay took a step towards her she put her arms up with her palms up to indicate that Mr. Mackay should not come closer. She testified that she then stepped back and began to talk to Dr. Winter about leaving.

52Dr. Morgan testified that Mr. Mackay then moved closer to Dr. Morgan and Dr. Winter and when he realized that they were discussing leaving said “goodbye, Kathy, goodbye Tracy” and then kissed Dr. Winter on the cheek. Dr. Morgan testified that Mr. Mackay then turned to her to kiss her on the cheek. Dr. Morgan testified that she put up her left arm in front of her face to block Mr. Mackay’s attempted kiss as she did not want him to kiss her goodbye. She testified that when she continued to talk to Dr. Winter, Mr. Mackay came up to her left side (approaching her from behind), put his right arm around her waist and then lowered his right hand onto her right buttock. She testified that he then deliberately applied pressure with his hand for about two seconds. She testified that she then elbowed Mr. Mackay with her left elbow. She testified that Mr. Mackay then walked forward to Dr. Winter put his right hand out around her wrist and pulled her onto the dance floor.

53Dr. Morgan testified that she felt nauseous and close to vomiting, that she was in shock as a result of Mr. Mackay’s actions. She testified that she felt she had been objectified by what had happened.

54Dr. Morgan testified that shortly afterwards she was able to speak to Dr. Winter (after she returned from the dance floor) as well as Mr. Logan, a fellow counsellor and the three of them arranged to leave the event. This was about 11:55 p.m. Dr. Morgan proceeded to drive Dr. Winter and Mr. Logan to their respective homes.

55Mr. Mackay’s account of what took place between him and Dr. Morgan is decidedly different. He testified that after having knelt before Dr. Winter in order to lightheartedly implore her not to leave he did see Dr. Morgan on the edge of the dance floor. He testified that he subsequently did say hello to Dr. Morgan, having not seen her for a while. He testified that she seemed normal if not positive. He testified that he complemented her again on her dress saying it was a beautiful dress. He testified he did not feel this was an excessive comment. He testified that Dr. Morgan smiled and did not say anything in response.

56Mr. Mackay testified that Dr. Morgan and Dr. Winter then proceeded to discuss leaving but that he did not participate in this conversation. He testified that he then said good night to Dr. Winter and to Dr. Morgan. He testified that in leaning forward to give Dr. Winter a kiss on the cheek he placed his hand on Dr. Morgan’s back. He testified he proceeded to kiss Dr. Winter on the cheek and exchange a brief mutual hug with her. He testified that he then turned to Dr. Morgan who was simply standing there and that he asked her whether she wanted a hug and a kiss good night as well. He testified that Dr. Morgan shook her head indicating “no”. He testified that he did not kiss or hug Dr. Morgan nor touch her waist or buttocks. He denied that Dr. Morgan made any gesture with her arms to indicate that Mr. Mackay should not come closer and/or kiss her. He testified that Dr. Morgan did not elbow him.

57Mr. Mackay testified that Dr. Winter and Dr. Morgan did not proceed to leave and so he asked Dr. Winter to dance. He testified that he held out his hand for Dr. Winter, that she took it freely and they proceeded to the dance floor together. He denied having grabbed Dr. Winter’s hand and having “pulled” her on to the dance floor.

58Dr. Winter had a limited recollection of what took place between Dr. Morgan, Mr. Mackay and herself. She testified that she did not recall Mr. Mackay kneeling before her. She testified that she did not hear Mr. Mackay make any comments to Dr. Morgan, including comments about Dr. Morgan’s dress. She did recall Mr. Mackay kissing her on the cheek, which she considered to be a friendly rather than a sexual gesture. Dr. Winter testified that she did not recall any further interchange between Mr. Mackay and Dr. Morgan. She testified that she did not see Dr. Morgan trying to block Mr. Mackay from kissing her. She testified that she did not recall Mr. Mackay touching Dr. Morgan’s waist or buttocks or Dr. Morgan elbowing Mr. Mackay. She also testified that while she had clear recollections of dancing, she did not recall returning to the dance floor with Mr. Mackay after he kissed her good night.

59Mr. Erickson testified that at his interview with Dr. Winter held on December 18, 2009, Dr. Winter told him that she believed that after Mr. Mackay kissed and hugged her he turned to Dr. Morgan and that she did believe that Mr. Mackay said something and that there was some sort of physical contact between Mr. Mackay and Dr. Morgan. Mr. Erickson referred to entries in his notes from this interview to support that this was what Dr. Winter told him. This apparent prior inconsistent statement by Dr. Winter about what she may have witnessed between Mr. Mackay and Dr. Morgan was not put to Dr. Winter.

60Dr. Winter testified that Dr. Morgan had a very firm sense of boundary and testified that she was hesitant to even to tell Dr. Morgan that her hair looked good in case this was seen as inappropriate or intrusive. She also testified that when she learned of Dr. Morgan’s allegation against Mr. Mackay during the University’s investigation, she was shocked given her knowledge of Mr. Mackay, who was both a fellow counsellor and a friend.

61In determining what did occur between Mr. Mackay and Dr. Morgan on June 16, I do not find Dr. Winter’s evidence as to what she witnessed between Mr. Mackay and Dr. Morgan to be reliable or ultimately of assistance. In my view she did not have a clear recollection of events. She did not, for example, recall returning to the dance floor with Mr. Mackay after saying goodbye to Mr. Mackay, or whether Mr. Mackay may have been kneeling before her earlier, which was the evidence of both Mr. Mackay and Dr. Morgan. She acknowledged that she did not have a clear recollection of what did occur during this time. In my view her recollections were clearly fragmentary in nature.

62Moreover, these recollections, in particular the information Dr. Winter apparently provided to Mr. Erickson about what she did witness occurring between Mr. Mackay and Dr. Morgan does not consistently support Dr. Morgan’s or Mr. Mackay’s account of events. The information she provided to Mr. Erickson that Mr. Mackay said something to Dr. Morgan after he kissed Dr. Winter would appear to support Mr. Mackay’s testimony that he asked Dr. Morgan whether he could kiss or hug her, given Dr. Morgan’s testimony was that Mr. Mackay did not say anything to her. However, Dr. Winter’s statement to Mr. Erickson that there was some sort of physical contact between Mr. Mackay and Dr. Morgan after Mr. Mackay kissed Dr. Winter would appear to support Dr. Morgan’s allegations that Mr. Mackay touched her, given Mr. Mackay’s claim that there was no physical contact between him and Dr. Morgan subsequent to him having kissed Dr. Winter.

63I do not agree with the respondents’ submissions that Dr. Winter’s failure to corroborate Dr. Morgan’s evidence about what occurred between Mr. Mackay and Dr. Morgan while Dr. Winter was standing nearby supports Mr. Mackay’s account of events that he did not touch Dr. Morgan. In my view the more accurate conclusion is that Dr. Winter had a very limited recall of events and she is not a reliable witness as to what actually occurred. As a consequence my determinations as to what happened between Mr. Mackay and Dr. Morgan do not rely, in any measure, on Dr. Winter’s recollections. What I have before me is Dr. Morgan and Mr. Mackay’s conflicting accounts as to what happened without any other eyewitnesses or other direct evidence as to what happened.

64There was no dispute that the alleged nature of the touching of Dr. Morgan’s buttocks would constitute sexual harassment – an act of discrimination – if I found it to have occurred. Such touching would be an action that Mr. Mackay knew or ought reasonably to be known to be unwelcome. The issue before me is whether Dr. Morgan has met her onus to provide evidence that is sufficiently clear, convincing and cogent to satisfy me that, on a balance of probabilities, she was harassed as claimed, that her account of events is more credible that Mr. Mackay’s. I am satisfied that she has met this onus.

65Dr. Morgan’s testimony before the Tribunal was remarkably detailed, forthrightly given, occasionally emotional and absolutely consistent.

66I find Dr. Morgan’s testimony about what occurred over the course of the June 16 evening to be full of telling detail. She repeatedly referred to the specific interactions she was having with people – their actions and her responses – and to the time of events. She provided a remarkably detailed and consistent account of her socializing over the whole evening. Her evidence about what happened between her and Mr. Mackay was the same, full of specific detail about what she was seeing, hearing and feeling. Her evidence was forthrightly presented. She readily described, in great detail, a sequence of events from Mr. Mackay commenting that she was wearing a pretty dress to the physical actions she later took to block Mr. Mackay to Mr. Mackay touching her buttocks. I find her testimony about her interactions with Mr. Mackay on June 16 to be credible and persuasive.

67I also had Dr. Morgan’s videotaped interview with the WRPS in evidence before me, as well as her written complaint to the University and Mr. Erickson’s notes from when Dr. Morgan was interviewed as part of the University’s subsequent investigation. I had Dr. Morgan’s Application. The information Dr. Morgan provided on each of these occasions is exceedingly specific and filled with precisely recalled details of events from the evening of June 16. This information was highly consistent with her testimony before the Tribunal. There are essentially no inconsistencies in the accounts of events provided by Dr. Morgan over an extended period of time and certainly not any of consequence.

68Dr. Morgan’s credible evidence was also supported, in my view, by further events. I heard testimony from Kristine Meier, a counsellor in Counselling Services that on June 17, the next day, Dr. Morgan told her about Mr. Mackay’s actions, including his having touched her buttocks. She testified that Dr. Morgan was highly agitated and visibly distressed while she provided this account. I further note Beth Mauer and Wendy Vaughan, both counsellors in the Counselling Services, told Mr. Erickson during their separate interviews that they had seen Dr. Morgan on the morning of June 17 and that Dr. Morgan had become visibly upset at the suggestion that that they all sit at a table with Mr. Mackay, stating that something had happened at the banquet and that she could not sit at that table. I find this information about Dr. Morgan’s interactions with workmates on the very next morning to be evidence in support of her allegations.

69By contrast I do have issues with Mr. Mackay’s evidence. In one sense there were no overt problems with Mr. Mackay’s testimony. His testimony that he touched the applicant briefly on her back while leaning forward to kiss Dr. Winter, that he then asked Dr. Morgan whether he could kiss and hug her and that he had demurred when Dr. Morgan indicated “no” was a plausible account of events with no apparent inconsistencies. However, ultimately I am of the view that this evidence is contrived and not as credible as Dr. Morgan’s.

70In my view, Mr. Mackay has constructed an account to respond to Dr. Morgan’s very specific account of events and allegations. It is possible, in my view, that this narrative has been provided because Mr. Mackay does not, in fact, remember the details of what did happen. However, whatever the reasons for Mr. Mackay’s account, it is simply not as persuasive as Dr. Morgan’s version of events.

71Mr. Mackay claims that he put his hand on Dr. Morgan’s back when he was leaning forward to kiss Dr. Winter. In my view this evidence has been provided to suggest that Mr. Mackay did touch Dr. Morgan but did so in an innocuous and non-sexual fashion. If Dr. Morgan was, in fact, fabricating her allegation that Mr. Mackay touched her buttocks, she would have, in my view, included this alleged interaction in her detailed description of events given that it would be an instance of an uninvited physical touch by Mr. Mackay. She did not. In my view Mr. Mackay’s further testimony that he specifically asked Dr. Morgan whether he could kiss or hug her and respected her subsequent indication that she did not want to be touched to be improbable. In my view it is intended to indicate that Mr. Mackay could, in no way, have taken action that could be said to be harassing in nature. I find this testimony not to be credible.

72The respondents submit that it is significant that Mr. Logan and Dr. Winter did not notice anything unusual about Dr. Morgan’s behaviour after she left the dinner and dance. Mr. Logan testified that she was jovial and normal. Dr. Winter testified that Dr. Morgan talked to both Mr. Logan and Dr. Winter and was herself on the way home. The respondents submit that this behaviour was not consistent with Dr. Morgan’s claim that she was in shock, felt physically ill, was close to vomiting and was trying to remember where the washrooms were after the alleged harassment.

73Dr. Morgan did not specifically testify about her own emotional state on the way home or her own behaviour during this period of time (she was not cross-examined on these issues). She does submit that Dr. Winter also later testified that Dr. Morgan may have been silent on the way home. She submits that Dr. Winter and Mr. Logan, who also testified that he had been consuming alcohol during the evening, may not have fully recalled her behaviours on the way home.

74Dr. Morgan did testify that she decided that she would not talk about what happened to her on the way home because she did not consider Mr. Logan to be a friend and because she believed Dr. Winter had been drinking a lot. She did testify that she was upset and nauseous when she recounted what had happened to her to her partner later that night.

75Under these circumstances I have not been satisfied that I can infer from Dr. Morgan’s alleged actions and behaviours while taking two colleagues home that she was not likely to have been in “shock” earlier in the evening and that, in turn, she had not been sexually harassed. While I did not hear testimony from the applicant as to how she behaved on the way home, I do find significant her claim that she was not prepared to discuss what had happened to her with Mr. Logan or Dr. Winter. I find this is a plausible explanation for why she may have appeared to be normal and not exhibited indications of an earlier emotional trauma.

76It is relevant to note some of the evidence and information before me that I did not rely on in arriving at my determination that Mr. Mackay harassed Dr. Morgan. I heard evidence from Constable Ranta about the WRPS sexual assault investigation, including evidence about some of the conclusions Constable Ranta reached from this investigation and some of the actions she took after it was determined that criminal charges would not be laid against Mr. Mackay. I have not relied on this information for the purposes of making my findings as to what happened on June 16, 2009. As the trier of fact, I have not considered or given weight to Constable Ranta’s credibility assessments and related actions arising from the WRPS investigation.

77Mr. Mackay’s testimony at the hearing was the only account he has provided as to what he contends took place when he was saying good night to Dr. Winter and then Dr. Morgan. Mr. Mackay chose not to participate in the WRPS investigation. During the University’s investigation, Mr. Mackay provided two written statements and participated in an interview with Mr. Erickson. These accounts include Mr. Mackay’s recollections of what took place over the course of the evening of June 16, including his general interactions with Dr. Morgan and others. They do not include any account of what took place between Mr. Mackay and Dr. Morgan when they were saying good night. They do include specific denials that Mr. Mackay touched Dr. Morgan’s buttocks. Mr. Mackay did not provide an account of events as part of the respondents’ Response to the Tribunal or as part of the witness statement he disclosed.

78Mr. Mackay testified that his unwillingness to provide any details of his encounter with Dr. Morgan was because he was told by Constable Ranta and Mr. Erickson that while the WRPS would not be pursuing criminal charges against him, it remained open to Dr. Morgan to commence a private criminal charge against him. Mr. Mackay stated that, accordingly, he had chosen, pursuant to his rights under section 13 of the Canadian Charter of Rights and Freedoms and the protections provided to him under the Canadian Evidence Act, R.S.C. 1985, c. C-5, and the Evidence Act, R.S.O. 1990, c. E.23 to remain silent about his specific interactions with Dr. Morgan to ensure that his right to a fair trial and to protection from self-incrimination would be protected. He submitted that he did not provide an account of what took place between himself and Dr. Morgan on June 16 as part of the Response, noting that in Wright v. Dhawan, 2009 HRTO 1476, the Tribunal recognized that a respondent may protect his rights and interests in a criminal proceeding by not providing a written Response to an Application.

79I have not based my decision, including my finding that Mr. Mackay is less credible than Dr. Morgan, on Mr. Mackay’s past refusal to provide an account of what he alleges took place between himself and Dr. Morgan when they were saying good night on June 16. I accept that Mr. Mackay’s rationale for not previously providing an account was because he wished to protect his right to remain silent to ensure that his right to a fair trial and to protection from self-incrimination would be protected. However, I would note that it is not immediately evident that Mr. Mackay’s decision not to fully participate in the Tribunal process (i.e. by filing a Response that reflected his testimony as to what specifically happened between himself and Dr. Morgan or by not providing a more detailed witness statement) is within his rights pursuant to Wright, given that there was no actual criminal proceeding or private information at the time of the Application in which his rights needed to be protected.

80In summary, it is the applicant’s clear, cogent and convincing evidence as to what happened that outweighs Mr. Mackay’s less persuasive account of what happened and satisfies me that Dr. Morgan was touched as claimed. I find that Dr. Morgan’s rights pursuant to section 5 of the Code have been violated.

THE UNIVERSITY’S RESPONSE TO DR. MORGAN’S COMPLAINT ABOUT JUNE 16

81The Tribunal has held that an employer has a duty to investigate complaints of discrimination or harassment; the duty to investigate is the means by which an employer ensures that it is achieving the Code-mandated responsibility of operating a discrimination-free environment. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. A failure to take steps to address allegations of discrimination may result in an employer being held liable for violating the Code.

82In Wall v. University of Waterloo (1995), 1995 CanLII 18161 (ON HRT), 27 C.H.R.R. D/44 at D/65, para. 160, an Ontario Board of Inquiry identified six elements of a reasonable response as follows:

(i) the response must be prompt;

(ii) there must be corporate awareness that the conduct complained of is prohibited;

(iii) the matter must be dealt with seriously;

(iv) there must be a complaint mechanism in place;

(v) the corporation must act so as to provide a healthy work environment; and

(vi) management must communicate its actions to the complainant.

Dr. Morgan relies on the decision in Wall and submits that the University has failed to meet any of the six criteria set out in Wall.

83Dr. Morgan’s central contention is that the University did not deal with her allegations seriously because it wrongly determined that there was no evidence to substantiate her allegations of sexual harassment. She submits the University applied the wrong test in determining whether she had been harassed. She submits that the University was of the view that it required other corroborative or “direct” evidence to determine whether, on a balance of probabilities, she had been harassed. She submits that in the absence of other corroborative or direct evidence the university had to make a credibility assessment in order to determine whether, on a balance of probabilities, Mr. Mackay harassed Dr. Morgan or not. Dr. Morgan submits that if the University had undertaken a credibility assessment it would have found on the evidence before it that she was credible and more credible than Mr. Mackay and her complaint would have been upheld. The applicant submits the failure to make such an assessment constitutes a failure by the University to meet its Code-mandated duty to investigate.

84Dr. Morgan submits that in making his decision, Dr. Ruttan did not appropriately consider Mr. Erickson’s report and its findings. For example, that Dr. Ruttan did not appropriately consider that Dr. Morgan had not been drinking on June 16 while Mr. Mackay had and that Dr. Morgan had a consistent recollection of events and Mr. Mackay had provided little information about his interactions with Dr. Morgan. She submits that Dr. Ruttan was wanting other direct evidence that she was harassed. She submits that Dr. Ruttan inappropriately gave weight to how a finding in Dr. Morgan’s favour would upset the Counselling Services Department.

85The respondents submit that the University did treat the applicant’s complaint of sexual harassment seriously and that this included making a determination about the merits of her complaint that appropriately considered the question of credibility.

86I find the University did consider Dr. Morgan’s allegations seriously. It determined that Mr. Mackay would be moved during the course of the investigation to minimize his contact with Dr. Morgan. It then conducted an investigation pursuant to the University’s anti-discrimination policy. The investigation was conducted by a human rights specialist, the Director of the University’s Conflict Management and Human Rights Office, Mr. Erickson. Mr. Erickson conducted approximately 12 interviews and issued an investigation report. This is a serious response to an allegation of discrimination.

87The investigation report produced in response to Dr. Morgan’s allegations is a substantive one. It includes a summary of Mr. Erickson’s investigative findings, a chart identifying what facts appeared to be in dispute, and significantly, a section specifically on credibility and the making credibility assessments. In this section Mr. Erickson writes “In situations where there is an absence of convincing evidence to support specific allegations a decision maker may wish to rely on the credibility of the complainant and respondent in an attempt to determine, on a balance of probabilities, who he/she believes more”. Mr. Erickson testified this section was included in the report in order to aid Dr. Ruttan in his decision making.

88Dr. Ruttan testified that he met with Mr. Erickson on August 5, 2009, at which time Mr. Erickson described the steps he would take in his investigation. He testified that Mr. Erickson told him that he would produce an investigation report and that it would then be up to Dr. Ruttan to make a decision. Dr. Ruttan testified that he clearly understood that he would have to make a determination as to what happened based on a balance of probabilities. Dr. Ruttan testified that Mr. Erickson explained this principle by suggesting that if Dr. Ruttan had a ruler balanced on a fulcrum that he would have to decide whether the available information tipped the balance towards Dr. Morgan or Mr. Mackay.

89Dr. Ruttan testified that that when he got Mr. Erickson’s report and had reviewed it in depth with others, including Mr. Erickson, he did not find that there was enough information in the report to tip the balance one way or the other. He testified that there was not enough information to reach any firm conclusions as to what had happened on June 16, 2009. He testified that he considered the credibility of both Dr. Morgan and Mr. Mackay as part of his assessment of all the information before him.

90I am satisfied, based on the evidence of Mr. Erickson and Dr. Ruttan and the documents before me, that Dr. Ruttan went through a process in which he duly considered Mr. Erickson’s report and assessed the credibility of Dr. Morgan and Mr. Mackay and determined that he could not, based on the totality of the information before him, arrive at a firm decision as to what, on a balance of probabilities, occurred on June 16, 2009. As Mr. Erickson testified, the University was of the view that both Dr. Morgan and Mr. Mackay provided credible accounts about the events of June 16 and the University could not decide who was more credible and that there was no other evidence to tip the balance one way or the other.

91I accept that Dr. Ruttan had an interest in the health of the Counselling Services Department – he referred to that interest on several occasions – but I do not agree with Dr. Morgan that a reasonable inference is that this concern led to Dr. Ruttan to give weight to this consideration in his decision. I do not agree with Dr. Morgan that Mr. Erickson’s report concludes that Dr. Morgan is a more credible witness and that Dr. Ruttan inappropriately rejected the findings of this report.

92I would also note here that Dr. Morgan testified that at a meeting she held with Dr. Ruttan in February 2012, Dr. Ruttan told her that a third-party witness was required in order for him to have tipped the balance of probabilities in Dr. Morgan’s favour. Dr. Ruttan testified that he was of the view that a third-person witness could have helped resolve what had happened on June 16, but that a third-person witness is not required in order to prove a sexual harassment allegation.

93I prefer Dr. Ruttan’s understanding of what he said in February 2010. I am satisfied, based on Dr. Ruttan’s evidence, that he understood that sexual harassment cases often do not have third-party witness and that findings of harassment can be made without evidence from a third party. In my view he was indicating to Dr. Morgan that further evidence may have helped him in making a definitive finding as to what happened on June 16.

94Leaving aside the issue of whether an employer must, pursuant to its a duty to investigate, be held to the same standards as an adjudicator in determining whether discrimination has occurred, I am satisfied that the University did meet the standard it set for itself, that it would decide on a balance of probabilities whether the applicant had been harassed. It was not unreasonable, in my view, for the University to have arrived at a conclusion in this case that the evidence that it had did not favour one side or the other and as a consequence the applicant failed to prove her allegation of harassment.

95Dr. Morgan made a number of further arguments as to why the University failed in its duty to investigate her complaint.

96Dr. Morgan submits that the University’s response to her complaint was not prompt, that after filing her complaint on August 5, 2009 it took until February 12, 2010 for the University to render its decision, a period of over six months. She submits that the time taken by the University to conduct its investigation is in sharp contrast to the WRPS investigation that took five weeks. She submits that there were opportunities for the University to act more promptly, including requiring Mr. Mackay to provide written responses to her allegations on a more timely basis, by hiring an external investigator, and by prioritizing her investigation when the University realized that Mr. Erickson, the designated investigator, had additional commitments which limited his availability (e.g. presenting workshops, conducting other investigations and taking a vacation).

97I find the timeliness of University’s response to the applicant was reasonable. The University met with the applicant on June 18, two days after the CACUSS event, to identify possible options for the applicant to pursue. The University promptly met with the applicant following the conclusion of the WRPS investigation and began the investigative process by asking Dr. Morgan for a written account of her allegations.

98I agree that the time taken for the subsequent investigation was longer, approximately five months. However, I do not find this to be an undue length of time given the comprehensive nature of the investigation, which involved detailed interviews with approximately 12 witnesses, and the fact that there were some other mitigating factors, including Mr. Mackay’s delayed participation and Mr. Erickson’s availability. I do not agree that the University should have hired an outside investigator in order to ensure the investigation was timelier. I think it is also relevant to note that the University did take steps to minimize the contact between Dr. Morgan and Mr. Mackay during the investigation period by requiring Mr. Mackay to work out of a satellite office.

99Dr. Morgan submits that the University has a flawed understanding of what constitutes sexual harassment and what is required to prove that sexual harassment took place. She submits that the definition of sexual harassment under the University’s Policy 33 is narrower than the definition under the Code (for example, that it needs to interfere with work and that there has to be a sexual aspect to any contact). She submits that the University has a higher burden of proof for sexual harassment than is required under the Code.

100I do not agree with these submissions. The issue of whether the definition of sexual harassment is the same in Policy 33 and the Code is not relevant in the sense that there was no dispute that if Mr. Mackay touched Dr. Morgan as she claimed that this act would constitute sexual harassment. And as previously discussed I am satisfied that the university did not apply a higher burden of proof in the present case, that it did conclude that the applicant had not, on a balance of probabilities, proven that Mr. Mackay had touched her.

101Dr. Morgan submits that the University did not have an appropriate complaint mechanism in place in that the University’s process allows the line manager responsible for making the decision as to the merits of a complaint too much discretion and that the responsible line manager is not bound by human rights case law, including the requirement to assess the credibility of key witnesses. She submits that the University should have done more to instruct Dr. Ruttan about how to make his decision.

102I am of the view that the respondent’s complaint mechanism is reasonable. The University does not require, as Dr. Morgan submits, a better complaint system, for example, one that would give the investigator greater say into a decision or one which would employ an external consultant. The University has a well-established and structured complaints mechanism which can utilize persons with specialized investigative skills and human rights knowledge. The fact that the person ultimately responsible for deciding whether there the University’s Policy 33 has been violated may not have their own human rights expertise does not make the complaints process unreasonable. Again, I would note that in this particular case that I am satisfied that Dr. Ruttan did consider the information before him and there is nothing unreasonable in a conclusion that, in the University’s view, the applicant had not met the onus on her to prove that, on a balance of probabilities, she was harassed. As the Tribunal states in Laskowska, above, the standard for assessing a respondent’s response to an allegation of discrimination is reasonableness, not perfection or correctness.

103Dr. Morgan submits that the University failed to return her to a healthy work environment because during the period of the investigation the University allowed two instances in which Mr. Mackay had contact with Dr. Morgan. One of these instances was when Mr. Mackay, in his capacity as the Co-coordinator of Study Skills, contacted Dr. Morgan by email in September 2009 to determine her availability to facilitate a workshop. The second instance was when Mr. Mackay came to Needle Hall on November 5, 2009, to participate in a meeting in a room Dr. Morgan was subsequently scheduled to conduct a workshop. They apparently saw each other. Dr. Morgan submits that the University should have been mindful of her scheduled workshop and made alternate arrangements so as to avoid any possible contact between Mr. MacKay and herself.

104I do not find the fact that the University may not have prevented all contact between Dr. Morgan and Mr. Mackay during the period June 19, 2009 to February 25, 2010, means it failed in its duty to return the applicant to a healthy work environment. The requirement to return a person to a healthy work environment after an allegation that that person’s rights under the Code have been violated is to return that person to a discrimination-free environment. There are no allegations that the two incidents cited by Dr. Morgan exposed her to further discriminatory treatment.

105I would note here Dr. Morgan’s further concern that Mr. Mackay had additional responsibilities in Counselling Services that resulted in him being able to exert “power” over her. Dr. Morgan maintained the University should have taken steps to ensure Mr. Mackay did not have this authority over her as the acting director or as a departmental co-coordinator in light of the events of June 16. She submits that the University ought to have removed Mr. Mackay from his role as Co-coordinator of Study Skills in order to ensure no direct contact between Dr. Morgan and Mr. Mackay.

106It is not evident to me that the University was required to take measures to limit any or all contact between Mr. Mackay and Dr. Morgan as part of its duty to investigate. The University did decide to have Mr. Mackay work out of a satellite office during the period of its investigation in order to minimize inadvertent interactions between Mr. Mackay and Dr. Morgan. That does not mean that it had an obligation to take additional steps to prevent any professional interaction between Mr. Mackay and Dr. Morgan arising from their respective roles in the Counselling Services Department.

107Dr. Morgan submits that the University failed in its duty to communicate with her by not apprising her at the outset of the investigation process of what specific criteria it would use in determining whether she had been harassed; for example, whether it would be considering direct evidence, circumstantial evidence and an assessment of credibility.

108In my view, the obligation to communicate a respondent’s actions as part of a duty to investigate centres on keeping a complainant aware of what steps are being taken in response to his or her complaint and ultimately, the nature of the findings made in relation to the complaint. My review of the documentation before me indicates that the University was in contact with Dr. Morgan regularly during the investigation period about what was happening. At the conclusion of its investigation, the University communicated its findings, decision and rationale for the decision. I find this communication reasonable.

109In summary, the duty to investigate requires that a respondent take reasonable steps in response to an allegation of discrimination. While Dr. Morgan is clearly of the view that the University’s responses were inadequate, I find them to be reasonable.

THE POTLUCK LUNCH AND HALLWAY INCIDENTS

110I heard testimony about seven events of alleged sexual harassment and reprisal following Mr. Mackay’s return to Needle Hall on February 24, 2010.

111Dr. Morgan testified that both she and Mr. Mackay attended a staff potluck lunch held on March 2, 2010. Dr. Morgan testified that Mr. Mackay unnecessarily moved from across the room to a spot close to where Dr. Morgan was sitting where he proceeded to have a conversation with a colleague for several minutes. Dr. Morgan testified that during this conversation Mr. Mackay physically backed up until he was within a foot of her chair. Dr. Morgan maintained that this was too close, that this was a deliberate invasion of her personal space and that Mr. Mackay could have avoided this situation. Dr. Morgan further submits that while in conversation Mr. Mackay could have stood where his colleague was and that he could have exited the room on the left side rather than the right side in order to maximize his distance from Dr. Morgan.

112Mr. Mackay testified that the potluck lunch was the first informal gathering of staff since his return to Needle Hall and that he felt it important to attend. He testified that there were 20 persons in a small room with chairs along the perimeter of the room. He testified that the Dr. Morgan was sitting close to the door. He testified that he was aware of Dr. Morgan’s presence and wanted to avoid her. He testified that as he was exiting the room a colleague, Jeanne Gascho, engaged him in conversation and that he stopped and talked to this colleague with his back to Dr. Morgan. He testified that he did feel uncomfortable but that it would have been awkward not to have this conversation or to somehow have it elsewhere. He testified that after a brief conversation he left the room. He denied that he deliberately shifted or moved closer to Dr. Morgan or in any way deliberately tried to intimidate her.

113Jeanne Gascho testified that she attended this potluck lunch. She testified that Dr. Morgan was sitting in close proximity to the door, as was her usual practice, and that anyone leaving the room would have, at some point, been in close proximity to Dr. Morgan. She testified that she was the colleague talking to Mr. Mackay near the doorway when Mr. Mackay allegedly began to back up towards Dr. Morgan. She testified that she did not recall Mr. Mackay moving towards Dr. Morgan, that she recalled that Mr. Mackay was trying, in effect, to leave the room.

114Dr. Morgan testified that the Counselling Services’ hallways in Needle Hall are narrow (44 inches wide) and that this has led to several established practices to facilitate persons passing each other in the hallway. I heard testimony that two parties walking towards each other in a hallway can both move towards the walls while passing in order to avoid potential contact. Alternatively a person can come to a stop while walking down a hallway to allow the person walking in the opposite direction to pass. Or a person can stop (and sometimes reverse their direction) in order to stand in a hall doorway to allow another person to walk down the hallway past them before proceeding.

115Dr. Morgan testified that Mr. Mackay failed to follow any of the accepted hallway protocols on six occasions in March and April 2010. She testified that when Mr. Mackay approached her on these six occasions in the hallway he deliberately passed her without moving towards the wall and in a manner that was intended to violate her personal space and to cause her to feel physically and emotionally unsafe.

116Dr. Morgan described each of these six occasions. She testified that on March 5, 2010, she was walking down the hall to get a client in the waiting room when Mr. Mackay came down the hallway in the opposite direction. She testified that instead of both parties moving to the side as was the established practice she ended up having to turns sideways to avoid coming into contact with Mr. Mackay, who did not do anything to get out of the way. Dr. Morgan testified that this made her exceedingly anxious. She testified that later the same day she was walking with a client when Mr. Mackay came out of his office and again came down the hallway in a manner that obliged her to move over to the wall to pass him.

117Dr. Morgan testified that on March 25, 2010, she was walking to her office when Mr. Mackay came out of his office and again she had to move to the degree that her shoulder was touching the wall to pass Mr. Mackay without any physical contact.

118Dr. Morgan testified that on March 31, 2010, she was returning to her office when Mr. Mackay approached her in the hallway, did not shift and indeed moved to the middle of the hallway and extended his right arm away from his body so that it was on her side of the hallway and could have led to them coming into contact with each other. Dr. Morgan testified that she was required to abruptly turn sideways to avoid contact.

119Dr. Morgan testified that on April 1, 2010, Mr. Mackay was standing in front of Mr. Logan’s office and, in Dr. Morgan’s opinion, could have waited in a doorway for her to pass. She testified that instead he came towards her, did not shift and again obliged the Dr. Morgan to move to avoid him. Dr. Morgan testified that Mr. Mackay’s actions were deliberate and that Mr. Mackay ought to have known that his behaviour was making Dr. Morgan feel unsafe.

120Dr. Morgan testified that on April 6, 2010, she went to the waiting room to get a client and was returning to her office when she came around a corner and almost came into contact with Mr. Mackay travelling in the opposite direction. Dr. Morgan was of the view that Mr. Mackay knew, by the ringing of a one o’clock bell, that Dr. Morgan was likely to be in the hallway and that he deliberately rounded the blind corner at a pace quicker that he would normally use in order to ensure physical contact with her.

121Mr. Mackay testified that he could recall each of the hallway incidents because except for a couple of staff meetings this represented the sum total of his interactions with Dr. Morgan during the period of February 25 to April 6, 2010. Mr. Mackay testified that the reason for the low frequency of contact during this period was because as he was apprehensive of encountering Dr. Morgan. He testified that while he wanted to be professional he attempted to minimize contact by staying in his office more than he normally would. He testified that prior to June 2009 he may have had contact with Dr. Morgan 30-40 times in a month.

122Mr. Mackay testified that on the two occasions he encountered Dr. Morgan on March 5 he did move closer to his side of the hallway. He testified that had no interest in contact with Dr. Morgan, that he wanted to avoid any such contact, and that he would in fact do everything to avoid contact given what had had happened to him since June 2009.

123Mr. Mackay testified that the hallway incident on March 25 was probably the next time he encountered Dr. Morgan because of his efforts to avoid contact. He testified that he did move; it was not true that he did not shift, as alleged. He testified that if both parties in a hallway don’t shift it is almost impossible for the parties not to touch.

124Mr. Mackay testified that he had a distinct recollection of the March 31 hallway incident. Mr. Mackay testified that in this instance Dr. Morgan moved to the left side of the hall instead of the right side (normally persons pass on the right), which Mr. Mackay testified led to an awkward moment when he had to decide which way he should go. He testified that as Dr. Morgan passed on the left, he moved over and there was no contact.

125Mr. Mackay testified that the April 1 incident was similar to the other hallway occurrences in that he moved and stayed on his side of the hallway. He testified that he had been in Dr. Logan’s office and if he had seen Dr. Morgan coming he would have remained in the office until she passed.

126Mr. Mackay testified that the April 6 incident was memorable for him because he almost made a comment to Dr. Morgan. He testified that he and Dr. Morgan pretty well met at a corner travelling in opposite directions. He testified that he could not see that Dr. Morgan was coming around the corner and that it was because Dr. Morgan came around the corner “wide” that they almost bumped into each other. He testified that they both came to a stop both moved to the right and continued past each other.

127I do not find that that Mr. Mackay’s actions at the potluck were done to harass Dr. Morgan or to retaliate against her for her having complained about Mr. Mackay’s actions on June 16, 2009.

128I do not find it probable that at a staff lunch, Mr. Mackay’s first function after returning to Needle Hall, Mr. Mackay would attempt to intimidate Dr. Morgan or try to threaten her sense of emotional or physical security by choosing to violate her personal space.

129I am satisfied that Mr. Mackay did stop close to where Dr. Morgan was sitting; this was not disputed. However, I am further satisfied that the reason for this was in order for Mr. Mackay to converse with a colleague before he left the room. I have no doubt that Dr. Morgan found the situation uncomfortable and disconcerting and that she was keenly aware of Mr. Mackay’s close proximity.

130I also accept that Mr. Mackay may well have backed up closer to where Dr. Morgan was sitting, a fact that Dr. Morgan noticed because of her heightened sensitivity to Mr. Mackay’s nearby presence. This may well have increased her discomfort. However, I simply do not find it probable that Mr. Mackay’s backing up towards where Dr. Morgan was sitting while in conversation with a colleague was harassing or deliberately intended as retaliation against Dr. Morgan for having complained about Mr. Mackay. I do not find the fact that Mr. Mackay could have alternated positions with Ms. Gascho or could have exited by leaving on the left side rather than the right side of the room in order to maximize his distance from Dr. Morgan and his failure to do so is evidence of his interest in either retaliating against Dr. Morgan or harassing her. The more likely explanations for Mr. Mackay’s movements, in my view, are that he was in a room with colleagues and only came into Dr. Morgan’s proximity because of an unplanned conversation he had with Ms. Gascho, and that after that any movement where he may have come closer to Dr. Morgan was inadvertent. I do not accept that Mr. Mackay was obliged to maximize his distance from Dr. Morgan while talking or while exiting the room and his failure to do so is in any way significant.

131I do not find Mr. Mackay deliberately crowded Dr. Morgan in the hallways whether to sexually harass her or in reprisal for her allegations of discrimination against Mr. Mackay.

132Dr. Morgan testified that all six hallway incidents were essentially similar in nature, that Mr. Mackay deliberately failed to move to the side when they passed in the hallway and that he did this in order to intimidate her. However, I find it significant that after the first two incidents on March 5, Dr. Morgan sent an email to Dr. Ruttan to complain about these two hallway incidents and as a consequence, Dr. Ruttan met with Mr. Mackay. Dr. Ruttan testified that he told Mr. Mackay of Dr. Morgan’s allegations and that Mr. Mackay told him that he was not acting differently with Dr. Morgan that he was with anyone else he passed in the hallway and that he was generally going out of his way to not encounter Dr. Morgan by avoiding her in any room or hallway. Dr. Ruttan testified that he told Mr. Mackay that he had to act professionally, that he needed to give Dr. Morgan space in the hallways.

133Dr. Morgan testified that Mr. Mackay’s actions did not change after the first two incidents on March 5, that on four more occasions (on March 15, April 1 and April 6), Mr. Mackay continued to invade her personal space when they encountered each other in the hallway. I do not find this probable. I do not find it probable that Mr. Mackay would not change his behaviour in the hallways after meeting with Dr. Ruttan and being warned to be mindful of his behaviour and of the need to give Dr. Morgan space if he had, in fact, been deliberately crowding Dr. Morgan, as alleged, on March 5. I do not find it probable that Mr. Mackay would deliberately intrude on Dr. Morgan’s space in the hallways after having been sent to a satellite office for eight months and presumably be at risk of sanctions if he was caught mistreating Dr. Morgan. I find it more probable that Mr. Mackay wanted to avoid Dr. Morgan, to minimize his contact and interactions with her, as he claimed.

134Dr. Morgan submits that Mr. Mackay would have had been angry at her for the fact that she filed a complaint and that this complaint resulted in Mr. Mackay being sent to a satellite office. She submits that this would have been Mr. Mackay’s prevailing emotional state, not a fear or concern that he might encounter Dr. Morgan. She contends this anger would have been a motivation for Mr. Mackay to retaliate against her at the potluck lunch and in the hallways. It was noted that Mr. Mackay acknowledged in his testimony that he found Dr. Morgan’s allegations about the potluck lunch and first two hallway incidents (when told to him by Dr. Ruttan) to be offensive and harassing.

135Even if Mr. Mackay was angry at Dr. Morgan, I do not accept her theory that Mr. Mackay was retaliating against her in the hallways and doing so with forethought. I do not find it probable that Mr. Mackay would have timed his entries into the hallway in order to bring about an encounter where Dr. Morgan would be obliged to push herself against the wall in order to avoid him as Dr. Morgan claimed. I find Dr. Morgan’s particular claim that Mr. Mackay rounded a blind hallway corner at a high speed on April 6 in order to deliberately affect a collision with Dr. Morgan (having calculated this was the time Dr. Morgan was likely to be in the hallway) to be highly improbable. I prefer Mr. Mackay’s evidence that his encounters with Dr. Morgan in the hallway were unexpected rather than premeditated.

136I also do not find Dr. Morgan’s understanding as to what took place during the hallway incidents to be reliable. Dr. Morgan testified about becoming hyper-vigilant after the events of June 16 and wanting to avoid any possible further interactions with Mr. Mackay. She testified, for example, about meeting Dr. Ruttan on February 25, 2010 – prior to any of the hallway incidents – to request a printer in her office in order to minimize her time in the common printer room where she might encounter Mr. Mackay. She testified that having her own printer would increase her emotional and physical safety. In my view, when Dr. Morgan saw Mr. Mackay approaching her in a hallway, she had a strong emotional response and an immediate concern for her physical safety. In my view she may well have sought to manage the situation and to do so by quickly and pre-emptively moving to the side of the hallway. This may have reduced the need or degree to which Mr. Mackay had to subsequently shift his position in order to pass her. In other words, while I find it probable Dr. Morgan did move to a much larger degree than Mr. Mackay did on the occasions they did encounter each other, I find that this was likely because of her interest in avoiding Mr. Mackay. I do not find it was because Mr. Mackay was deliberately trying to infringe on Dr. Morgan’s sense of personal space and to do so in order to harass or retaliate against her.

THE UNIVERSITY’S RESPONSE TO DR. MORGAN’S COMPLAINTS ABOUT THE POTLUCK LUNCH AND HALLWAY INCIDENTS

137Dr. Morgan made a number of written complaints to Dr. Ruttan about what allegedly happened at the potluck lunch and during her encounters with Mr. Mackay in the hallway. Dr. Ruttan testified that he understood Dr. Morgan’s complaints to be ones about her safety. He testified that Dr. Morgan communicated to him a concern as to what Mr. Mackay might do, that he might physically touch her as he had previously done in June 2009.

138Dr. Ruttan testified that in response, he spoke to Mr. Mackay about what had happened. He testified that he clearly communicated Dr. Morgan’s concerns to Mr. Mackay in the two meetings he held with him in March 2010. He testified Mr. Mackay denied Dr. Morgan’s allegations. He testified that he told Mr. Mackay of the importance of giving Dr. Morgan space in the hallway. He testified that at his second meeting with Mr. Mackay, Mr. Mackay was upset that there had been another complaint by Dr. Morgan about his conduct in the hallway, maintaining that he had done nothing wrong when passing Dr. Morgan.

139Dr. Rattan testified he could not clearly determine what may have taken place between Dr. Morgan and Mr. Mackay at the potluck lunch and during the hallway incidents. He testified that he appealed to both Mr. Mackay and Dr. Morgan about the need to act professionally and to repair their working relationship. He testified that his focus became how to move forward, to reduce the tensions between Mr. Mackay and Dr. Morgan and to build their professional relationship.

140Dr. Morgan submits that the University failed to meet its duty to investigate her complaints about the potluck lunch and hallway incidents. Dr. Morgan’s submits that the University failed to consider her complaints seriously and failed to conduct an appropriate investigation of her allegations of discrimination.

141Dr. Morgan submits that the University failed to take her complaints seriously in large measure because it failed to consider them as complaints of sexual harassment and reprisal. She submits that the University considered them to be “just” about physical and emotional safety. She submits the University failed to conduct an appropriate investigation when Dr. Ruttan simply determined after talking to Mr. Mackay and Dr. Morgan that he did not know who to believe and that his focus would be on how to move forward, to reduce tensions between Mr. Mackay and Dr. Morgan and to build their professional relationship. She submits Dr. Ruttan should have made a clear determination as to what happened and whether Mr. Mackay had sexually harassed her and retaliated against her for having previously made a complaint against him. She submits the failure to do so was a denial of the University’s responsibility to ensure her safety and that she was working in a healthy environment.

142The University submits that it was significant and relevant that Dr. Morgan did not complain to the University that Mr. Mackay sexually harassed her or retaliated against her at the potluck lunch or during any of the six hallway incidents. It submits that the applicant repeatedly referred in her complaints to Dr. Ruttan that Mr. Mackay’s actions made her feel physically and emotionally unsafe and that she had the right to have a safe workplace. It submits she repeatedly complained that Mr. Mackay was acting in an unprofessional manner. The University submits that Dr. Morgan did not make a complaint or complaints pursuant to the University’s anti-discrimination policy, Policy 33, as she did when she complained to the University about Mr. Mackay’s conduct on June 16, 2009. The University submits it was reasonable for it to consider and address the applicant’s complaints about the potluck and hallway incidents in question as non-Policy 33 and non-Code-related complaints and accordingly they had no Code-mandated duty to investigate these complaints.

143In response to these submissions, Dr. Morgan argues that the University should have recognized that her complaints about Mr. Mackay’s conduct at the potluck lunch and in the hallways was that Mr. Mackay was sexually harassing her and retaliating against her. Dr. Morgan submits this is clear given the nature of Mr. Mackay’s conduct even if Dr. Morgan had not explicitly referred to harassment or reprisal or Policy 33 when she complained. Dr. Morgan submits that the onus should not be on a complainant to use a particular phrase such as sexual harassment or reprisal for an investigation of these allegations of discrimination to begin. The employee should only have to describe the actions and their unwanted effects and the University should then be responsible for classifying these complaints correctly and responding accordingly. She submits that otherwise every employee would have to an expert on human rights and know exactly what to say in order to get a formal investigation into an alleged act or acts of discrimination.

144I agree with Dr. Morgan that there may be instances in which an employee does not fully understand what options may be open to the employee when complaining about the treatment the employee has received in the workplace. However, I do find it significant that Dr. Morgan did not file a complaint about the potluck and hallway incidents under Policy 33 or allege that her rights under the Code had been violated. In my view Dr. Morgan made a choice about how she was going to complain to the director of her department. She explicitly and repeatedly complained about Mr. Mackay acting unprofessionally and threatening her emotional and physical safety. She did not allege she that she was sexually harassed or subject to retaliation.

145The fact that Dr. Morgan was looking to resolve her issues through a complaint to the director of her department rather than through a formal University policy and complaints mechanism that she was fully conversant with is reason, in my view, for the University to then have responded to her complaints outside of the requirements of Policy 33 and its complaints mechanisms. I do not find that the University was required, given the nature of how Dr. Morgan made her complaints, to determine whether the anti-discriminatory provisions of Policy 33 and Dr. Morgan’s Code rights were violated. I find it reasonable, under these circumstances, that the University’s intervention was less formal, that it consisted of Dr. Ruttan meeting with Mr. Mackay and Dr. Morgan to determine their positions with no formal findings of culpability as a result of this investigation. It was reasonable, in my view, that Dr. Ruttan determined from his dealings with Mr. Mackay and Dr. Morgan that he wanted to emphasize to both of them the importance of acting professionally and his interest in restoring their working relationship.

146Under these circumstances I am satisfied that the University’s response to Dr. Morgan’s complaints does not constitute a failure in a duty to investigate.

147Dr. Morgan further alleges that the University reprised against her for complaining about the potluck and hallway incidents. Her complaint is essentially twofold. She alleges the University’s failure to treat her allegations seriously by failing to conduct an appropriate investigation in order to restore her to a healthy work environment is, itself, an act of reprisal. She further alleges that Dr. Ruttan told her in a meeting and in a letter dated May 25, 2010, that her complaints about the potluck lunch and hallway incidents were mere conjecture and that in future she could only make complaints about incidents in which there was an alleged physical touching. Dr. Morgan alleges that in communicating this message, the University was limiting her rights to file human rights related complaints and was doing so in reprisal for her potluck lunch and hallway complaints.

148As I earlier noted it is not evident that Dr. Morgan was claiming or enforcing a right under the Code when she made her complaints about the potluck lunch and hallway incidents and moreover, whether the respondent understood that Dr. Morgan was allegedly claiming such a right – an important issue given reprisal requires that a respondent intentionally retaliate against an applicant for claiming or enforcing Code- related rights. However, I do not find that there is anything in the nature of the University’s response to Dr. Morgan’s complaints to suggest that it was retaliating against Dr. Morgan for having made her complaints. In my view Dr. Ruttan provided a persuasive rationale for the steps he took in responding to the complaints, including his meeting with Mr. Mackay and Dr. Morgan, his determination that he could not establish what precisely may have happened between them, that he impressed upon Mr. Mackay the need to ensure that he gave Dr. Morgan lots of space in the hallway, and that he told both Dr. Morgan and Mr. Mackay of the need to act professionally and move forward. I do not see anything in these efforts that is improper, punitive or retaliatory in nature. I also do not see the basis for Dr. Morgan’s further submission that Dr. Ruttan’s overarching interest was to re-establish the Consulting Services Department team and avoid further distress in the department, and so he punished Dr. Morgan by refusing to investigate her complaints. The fact that Dr. Ruttan’s investigation was limited in scope and was not as fulsome as Dr. Morgan would have liked does not indicate that the process treated Dr. Morgan in a retaliatory or punitive fashion.

149Dr. Morgan testified that Dr. Ruttan also told her in a meeting on May 25, 2010, that Dr. Morgan’s reports of incidents that did not involve physical touching did not help him and there was nothing more he could do in response. She testified that he told her that he only wanted to know of incidents involving alleged physical contact. She testified that Dr. Ruttan then provided her with the following letter:

Dear Dr. Morgan,

Thank you for your email messages during the Winter 2010 academic term. They have assisted me in understanding more thoroughly your concerns. I want to outline how we proceed from this point.

Reviews by the Waterloo Regional Police Service and the UW’s Office of Conflict Management and Human Rights revealed no evidence to substantiate your allegations of sexual harassment against David Mackay. In a letter from me (February 12, 2010) you were advised that you and Mr. Mackay were to take the necessary steps to re-establish a professional working relationship with one another and with everyone on the team.

You have made more recent allegations that Mr. Mackay is endangering your physical and emotional safety when passing you by in the hallways and standing too close to you during staff functions (e.g. staff luncheon). You advised me that there has been no physical contact by Mr. Mackay toward you on these occasions but that you are concerned about what might occur as opposed to any actual occurrence. Such conjecture has to stop and the re-establishment of a good working relationship between you and Mr. Mackay has to begin now.

Both you and Mr. Mackay are critical components in the solution moving forward and the University expects you and Mr. Mackay to make determined and concerted efforts to re-establish your professional working relationship and your relationship with everyone on our team. I will also be speaking to Mr. Mackay about the University’s expectations in this regard. The University requires this collaboration between you and Mr. Mackay to be underway by June 14, 2010 and proceed in a timely manner.

To assist in this process I am willing to help arrange facilitated discussions between you and Mr. Mackay to re-establish your professional working relationship with one another and with everyone on our team.

Please confirm that you are prepared to proceed with this process and that you will work with Mr. Mackay to have it underway by June 14, 2010.

Sincerely

Tom Ruttan

150Dr. Morgan submits that the letter’s reference to her potluck lunch and hallway complaints as being conjectures, and that these conjectures must stop, can be reasonably interpreted to mean that Dr. Morgan was being told not to report any incidents that do not involve physical contact, and as such the University was limiting her rights to file future human rights complaints. She also referred to her notes from her May 25 meeting with Dr. Rattan in which she recorded Dr. Rattan as telling her that these incidents were “not helpful” and that “it doesn’t reach a threshold for me to do anything about it”.

151Dr. Morgan submits that her view that she was being retaliated against for making her complaints was further reinforced when she wrote to Dr. Ruttan in a letter dated May 31, 2010, in which she expressed her concerns that she was being told not to report incidents that did not involve allegations of physical touching. She testified that the University did not reply to this further letter to indicate that she was incorrect in her understanding that she was being told to limit her future complaints. Dr. Morgan submits that the University’s effort to limit her right to make future complaints is an act of reprisal.

152Dr. Ruttan testified that it was the University’s understanding that Dr. Morgan’s concern in making her complaints was that Mr. Mackay might physically harass her. He testified that he did not believe there was anything more he could do in response to complaints by Dr. Morgan about encounters with Mr. Mackay when they were based on concerns about what might happen to her. He testified that the reference to “such conjecture has to stop” was not intended to prevent Dr. Morgan from making complaints, including complaints under Policy 33. He testified he never told Dr. Morgan that she could not make future complaints. He testified that he did not respond to Dr. Morgan’s May 31, 2010 letter because at that point in time Dr. Morgan had filed her Application with the Tribunal.

153I do not find that Dr. Ruttan’s letter and the comments he purportedly made during his meeting on May 25 with Dr. Morgan constitute reprisal. In my view, Dr. Ruttan was communicating why the University was of the view that it could not do more to resolve the type of complaints the applicant had been making, that the University believed they were based on conjecture. In my view, this is not punishing or retaliating against the applicant for having made such complaints, but rather identifying why the University believes, based on its experience, that future complaints of this type are “not helpful”.

154I do not find that Dr. Ruttan’s letter and comments indicate that Dr. Morgan cannot pursue her rights under the Code. The University clearly took a position that Dr. Morgan objects to, one that she feels limited her rights. However, I fail to see that this prevents the applicant from pursuing any of her rights under the Code.

155Dr. Morgan also submits that the University treated her and Mr. Mackay differently in terms of its expectations for re-establishing their professional relationship. Dr. Morgan submits she confirmed to the University before June 14, 2010, that she was prepared to work with Mr. Mackay to re-establish their professional relationship as she was directed to do in Dr. Rattan’s May 25, 2010 letter. She submits that Mr. Mackay did not provide such written assurance to the University and yet was not held accountable for this. Dr. Morgan submits this is further evidence of how the University treated Mr. Mackay differently than her.

156This is not an issue I need to decide. It arises out of events that take place after the Application was filed and does not form part of the Application’s allegations. I am also of the view that determining whether the University ought to have done more in response to Mr. Mackay failing to agree to facilitated discussions with Dr. Morgan simply does not assist me in determining the issues that are properly before me.

REMEDIES

157Section s. 45.2(1)1 of the Code empowers the Tribunal to order a party who has infringed a 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.

158Dr. Morgan requests compensation for costs she has incurred (special damages) and compensation for injury to dignity, feelings and self-respect (general damages). She has also requested a number of non-monetary and public interest remedies.

Special Damages

159Dr. Morgan requests that she be compensated for the cost of a one-time consultation she held with a lawyer during the University’s investigation process ($409.50).

160Dr. Morgan requests she be compensated for that portion of Dr. Heimpel’s consultation fees which were not covered by insurance plans ($258). She requests compensation for the cost of obtaining a medical note in the Fall of 2009 which was used to support a request to reduce her hours at work ($20).

161Dr. Morgan requests compensation for the time she took while on her vacation in August 2009 to prepare her written complaint to the University. This was seven days. She contends that the rest of her vacation was negatively affected by her re-experiencing the June 16, 2009 sexual harassment incident, the WRPS investigation and her interactions with the University. Dr. Morgan seeks compensation for these 22 days of vacation. She proposes compensation of 29 days to be calculated on a prorated basis based on her annual salary ($8,787).

162Dr. Morgan requests compensation for the time she needed to prepare her Application and prepare for her Tribunal hearing. She calculates this to be 317 hours in 2011 ($14,202) and 418 hours in 2012 ($18,825).

163Dr. Morgan seeks further compensation for the time spent at the HRTO hearing which she estimates to be a further 84 hours (no financial amount provided).

164Dr. Morgan requests compensation for the time she spent on her written submissions following the hearing before the Tribunal. Dr. Morgan calculates this to be seven days (no financial amount provided).

165Dr. Morgan requests compensation for additional preparation costs for her hearing including photocopying, mailing, the purchase of resource materials and the summons and appearance fees for witnesses ($1,891).

166Dr. Morgan submits that these special damages are warranted, that if not for Mr. Mackay’s actions and the failure of the University to adequately respond she would not have had to incur these costs. She submits that the Tribunal has held that the purpose of compensation under the Code is to restore an applicant as far as possible to the position that the applicant would have been in if the discriminatory act had not occurred. Dr. Morgan also relies on Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2), 2012 BCHRT 247, a British Columbia Human Rights Tribunal decision in which a respondent was ordered to pay for the travel costs and lost wages incurred by an applicant to attend a hearing.

167The respondents oppose these requests for compensation. They submit the Tribunal does not have the jurisdiction to award legal costs. They submit that the applicant suffered no financial loss in preparing for and participating in the University and Tribunal’s complaints processes given that she lost no salary. They submit her claim for participation costs is in effect, for compensation in addition to the salary she has received as a Counsellor in Counselling Services.

168Dr. Morgan’s request for compensation for consulting a lawyer is denied. The Tribunal does not have the jurisdiction to award legal costs. See Clennon v. Toronto East General Hospital, 2010 HRTO 506. Dr. Morgan’s request to be compensated for her out of pocket expenses for photocopying, buying reference books and paying fees for witnesses is denied. These are disbursements incurred in relation to the hearing and as such are a claim for costs. The Tribunal does not have authority to award costs. See: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405, Royal v. Optilinx Systems Inc., 2010 HRTO 2135.

169Dr. Morgan has asked for compensation for her time preparing for and participating in the Tribunal hearing process. This is, in effect, a request for costs given that Dr. Morgan has put a financial value on her participation in the process for which she wants compensation. This request is denied on the basis that the Tribunal does not have the authority to award costs. I do not find the British Columbia Human Rights Tribunal’s decision quoted by Dr. Morgan persuasive in light of the Tribunal case law (referenced above) which establishes that the Tribunal cannot order a party to financially compensate another party for their costs to participate in the Tribunal process.

170Dr. Morgan’s request for compensation in the form of special damages for the time she spent in August writing her complaint to the University and dealing with the emotional effects of making this complaint is denied. Dr. Morgan suffered no financial loss when she made this complaint. It is reasonable to expect, in my view, that a complainant will have to spend time to file a complaint and participate in a complaints process and that this should not be compensable even in instances where the complaint is ultimately sustained. The request that Dr. Morgan be compensated for the emotional distress she experienced in August 2009 arising from the events of June 16, 2009 is more properly a claim for compensation for injury to dignity, feelings and self-respect which I will address later.

171Dr. Morgan’s request to be compensated $258 for Dr. Heimpel’s counselling fees and $20 for the medical note charged by her physician are granted. I am satisfied these medical expenses incurred by Dr. Morgan are related to the harassment of June 16, 2009, and warrant compensation.

General Damages

172Dr. Morgan requests $25,000 in general damages for the injury to her dignity, feelings and self-respect arising from the sexual harassment on June 16, 2009. Dr. Morgan has requested additional general damages related to events that took place after February 25, 2010, but I do not need to consider these in light of my finding that the only Code violation before me is the June 16 incident of sexual harassment.

173In evaluating the appropriate damages for injury to dignity, feelings and respect under section 45.2 of the Code the Tribunal has applied two criteria: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. As stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 53 and 54:

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.

174I find the June 16, 2009 harassment to be objectively less serious. It is a one-time incident involving a single, brief physical touch. It did take place after Dr. Morgan indicated by means of gestures that she was not interested in any physical contact with Mr. Mackay. Nonetheless, it is a single incident that did not jeopardise or affect the status of Dr. Morgan’s ongoing employment. It is not perpetrated by a person in a position of authority who used that authority to take advantage of the vulnerability of the victim.

175I do find that the harassment did have a significant impact on Dr. Morgan, that as a result of this discriminatory action she has experienced particular emotional difficulties.

176Dr. Heimpel testified that she conducted 13 treatment sessions with the applicant beginning in October 2009. She testified that Dr. Morgan told her that she had come for treatment because of a sexual assault at work, that Dr. Morgan was highly emotional during her treatment and that this emotion was in line with the content of the information Dr. Morgan was providing to her. She testified that Dr. Morgan displayed symptoms that were consistent with Post Traumatic Stress Disorder, based on the diagnostic criteria of this condition set out in the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (“DSM-IV”). She testified that Dr. Morgan displayed the symptoms of a person who had experienced a traumatic event, a person who had recurring experiences of the event, a person who had increased psychological or physical distress when re-experiencing the event, a person with numbed responsiveness, a person who avoided experiences that reminded them of the traumatic event and a person who persistently experienced problems such as difficulties with sleep, increased irritability and hyper vigilance. Dr. Heimpel testified that Dr. Morgan experienced some of these symptoms over a few weeks and other symptoms persisted until at least May 2010. She testified that work-related events such as the decision that Mr. Mackay would return to Needle Hall and the hallway incidents involving Mr. Mackay increased Dr. Morgan’s anxiety. She testified that a concern was that the applicant’s work environment could trigger further symptoms. She testified that Dr. Morgan’s cognitive functioning was impaired and that she had difficulty managing in her work environment.

177This evidence is consistent with a report from Dr. Heimpel dated August 3, 2010 that was before me. I also had copies of Dr. Heimpel’s clinical notes from her sessions with Dr. Morgan.

178During cross-examination, Dr. Heimpel testified that she did not treat Dr. Morgan prior to June 16, 2009, and that she did not ask Dr. Morgan about possible traumatic events prior to June 16, 2009. The respondents submit that, accordingly, there is no “baseline” against which to assess Dr. Morgan’s condition when she was being treated by Dr. Heimpel and the Tribunal cannot conclude whether the events of June 16 caused or solely caused Dr. Morgan’s emotional difficulties.

179As stated, I am satisfied that Dr. Morgan did experience particular emotional difficulties as a result of the events of June16. I do not know whether she may have previously experienced other traumatic events but I am satisfied, in large measure because of Dr. Heimpel’s testimony and the related documentary medical evidence before me, that Dr. Morgan was significantly affected by what happened on June 16.

180Findings of discrimination based on sexual harassment have attracted a range of compensation for injury to dignity, feelings and self-respect. See, for example Gregory v. Parkbridge Lifestyle Communities Inc., 2011 HRTO 1535 ($1,000); Romano v. 1577118 Ontario Inc., 2008 HRTO 9 ($1,000); Harriott v. National Money Mart, 2010 HRTO 353 ($7,500); Newton v. Toronto (City), 2010 HRTO 1023 ($15,000); S.S. v. Taylor, 2012 HRTO 1839 ($15,000); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); G.G. v. […] Ontario Limited, 2012 HRTO 1197 ($18,000); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 ($25,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); S.H. v. M[...] Painting, 2009 HRTO 595 ($40,000); and Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000).

181Awards at the lower end of the range tend to be in cases where the Tribunal has found fewer incidents of discrimination, the incidents were of a less serious nature, and/or the incidents did not include physical touching. In cases on the high end of the range, the Tribunal has generally found that there were multiple incidents, the incidents were involved more serious physical harassment, there was a poisoned work environment, and/or there was a reprisal or a loss of employment related to the incidents.

182As noted I find the nature of the harassment to be less serious given its brief, one time nature and the fact it had no effect on the status of Dr. Morgan’s employment. I do find the effect on Dr. Morgan to be substantial and that this affects the remedy that should be awarded. I find after considering the overall seriousness of the harassment, the applicant’s emotional distress and the Tribunal’s case law that $7,500 is an appropriate award of compensation for injury to dignity, feelings and self-respect.

Liability

183There is the further issue of who is liable for this compensation and the special damages of $278 that I have awarded for Dr. Morgan’s out-of-pocket medical expenses. Is Mr. Mackay solely liable, because I have determined he harassed Dr. Morgan, or is the University also jointly and severally liable?

184Section 46.3(1) of the Code provides that for the purposes of the Code, any act or thing done or omitted to be done by an officer, official, employee or agent of a corporation done in the course of their employment shall be deemed to be an act or thing done or omitted to be done by the corporation, with certain exceptions. The exceptions include acts of harassment under section 5(2) of the Code. However, the Ontario Divisional Court has held that if the individual responsible for harassment is a directing mind of the corporate respondent, then the corporate respondent can also be held liable for the individual’s acts. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33. The issue then is whether Mr. Mackay is part of the directing mind of the University such that the University should also be held liable for Mr. Mackay’s actions on June 16, 2009.

185The issue of Mr. Mackay’s authority in the Counselling Services Department was principally raised in the context of whether Mr. Mackay exercised power over Dr. Morgan, but it is helpful in resolving whether Mr. Mackay can be said to be part of the University’s directing mind. I heard evidence that Mr. Mackay often acted for Dr. Ruttan in his absence. The principal responsibility for someone acting for Dr. Ruttan is to be the contact for Counselling Services in case of a crisis which might require consultation with a department counsellor. The acting director was also available to any counsellor who needed to confer about an issue of concern. There was no dispute that persons acting for Dr. Ruttan had no authority to assign work, or deal with terms and conditions of counsellors’ employment, including performance assessment, scheduling, discipline, pay or benefits. There is no “Acting Director” position title.

186Mr. Mackay has also acted as the Counselling Services’ Co-ordinator for Study Skills and the Co-ordinator for Training and Supervision. The Co-ordinator for Study Skills’ principal responsibility is to arrange for counsellors to provide workshops on study skills for students. Dr. Morgan submits that in this capacity Mr. Mackay assigned her to workshops and in so doing directed her work. The Co-ordinator for Training and Supervision plays a role in assigning interns to counselling staff. Dr. Morgan submits Mr. Mackay made decisions as to who would be assigned an intern rather than making this decision collaboratively with interested counsellors.

187Dr. Morgan repeatedly expressed concerns that Mr. Mackay had power over her in his roles as acting director and in his two co-ordinator positions and that in these roles he could direct Dr. Morgan’s actions. She submits that Mr. Mackay had significant influence in Counselling Services and that Dr. Ruttan relied on his advice and considered him to be his second in command.

188The respondents submit that Mr. Mackay was not the only counsellor who took on the role of acting for Dr. Ruttan in his absence and that he was not the only co-ordinator in the department. Dr. Ruttan testified that the acting director’s responsibility and authority relative to his is virtually none. The respondent submits that other counsellors also act as departmental co-ordinators and in this role co-ordinators administratively coordinate initiatives noting that co-ordinators at played this role and that counsellors cannot force or deny assignments.

189I do not find that Mr. Mackay can be considered to be part of the University’s directing mind. He is, like Dr. Morgan, a counsellor in the Counselling Services Department and as a counsellor he has no management or supervisory responsibility. It is clear Mr. Mackay took on further roles. He acted for Dr. Ruttan, as apparently other counsellors did. The evidence before me is that a person acting for Dr. Ruttan has limited authority and no delegated supervisory responsibility. It may be that that the acting director has some power, including an ability to confer and provide some direction to a counsellor, but I find this authority is limited. I further note Mr. Mackay only held the position of acting director only intermittently. There was also no evidence that he was acting for Dr. Ruttan at the times of the alleged incidents of discriminatory treatment in June 2009 and February to April 2010.

190It appears that the co-ordinators positions are ones that are held by a number of counsellors and that these positions are rotated over time. The applicant alleges that the Mr. Mackay was overly directive in this role, particularly as the Co-ordinator for Training and Supervision. However, even if Mr. Mackay was not as collaborative as Dr. Morgan believed he should have been in this role, this does not lead me to find he was in effect supervising Dr. Morgan and others while in this role. Even if Mr. Mackay had a degree of leadership in the department, I do not find this means he was part of the directing mind of the University. As a consequence I find, pursuant to section 46.3(1) of the Code, that Mr. Mackay is alone responsible for the special and general damages awarded to Dr. Morgan.

Non-Monetary Remedies

191Pursuant to s. 45.2(1)3 of the Code, this Tribunal has the power to order the respondents to do anything that, in the Tribunal’s opinion, the respondents ought to do to promote compliance with the Code. It is well-established in human rights law that any order intended to promote Code rights and policy “…should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances”. See Giguere v. Popeye Restaurant, 2008 HRTO 2.

192Dr. Morgan seeks a number of non-monetary remedies, some of which are specific to her case and interests and some of which can be categorized as public interest remedies.

193Dr. Morgan proposes that Mr. Mackay be moved back to a satellite office and that Mr. Mackay not be allowed to be in the Counselling Services’ Department’s main office whenever Dr. Morgan is there.

194Dr. Morgan proposes that Mr. Mackay no longer be allowed to exercise power over her in his capacities as the Counselling Services Department’s Acting Director or Co-ordinator of Study Skills and Training and Supervision. She submits that this would be an important way to prevent Mr. Mackay from perpetrating further acts of sexual harassment and reprisal against her in future. Dr. Morgan’s recommended remedy is that Mr. Mackay no longer continues in any of these three roles.

195Dr. Morgan proposes that Mr. Mackay be required to have a psychological or psychiatric assessment regarding his acts of harassment and reprisal to determine his risk of recidivism.

196I do not find these proposed remedies are warranted given my findings. I have determined that a single incident of harassment has taken place. I am not satisfied, given the nature of the Code violation before me, that these proposed remedies are required to ensure future compliance with the Code. They are also largely punitive rather than remedial in nature.

197The Dr. Morgan requests that the Tribunal require the University to rescind its May 25, 2010 letter to remove the restrictions regarding the Dr. Morgan’s ability to report incidents of sexual harassment and reprisal. I am of the view this letter does not prevent Dr. Morgan from making future complaints of sexual harassment or reprisal or on other Code-related grounds and consequently no remedy is required in relation to this letter.

198Dr. Morgan requests that the University be directed to issue a public statement on their website acknowledging that they restricted Dr. Morgan’s rights and that they understand that the restrictions imposed by the University’s May 25, 2010 letter violated Dr. Morgan’s rights and the University be directed to affirm Dr. Morgan’s rights to file complaints of sexual harassment in the future. As I do not find that the University’s May 25, 2010 letter violated the Code, I find no reason to require such an extraordinary and essentially punitive measure.

Public Interest Remedies

199Dr. Morgan seeks a number of remedies about improving the University’s complaints process and responses to complaints of sexual harassment. These include a proposal that the University change its definition of sexual harassment and further its understanding of reprisal in order to lessen the likelihood of further incidents of harassment and reprisal

200Dr. Morgan proposes that the University change its investigation process so that it includes a requirement to disclose certain documents to the person filing a complaint.

201Dr. Morgan proposes that the University develop a written protocol on how to deal with incidents of sexual harassment, a protocol that includes providing information to a complainant about the outcomes of his or her complaint.

202I have not found that the University’s investigation process is flawed, or that the University failed in its duty to Investigate. Accordingly, I am not directing the University to make changes to its investigation processes or how it responds to allegations of sexual harassment. It is always open to the University to reconsider its practices in light of its experiences in responding to Dr. Morgan’s complaint.

203Dr. Morgan requests that the Tribunal direct the University to issue its decision to all Counselling Services Department staff, that department staff be apprised of what constitutes sexual harassment and how they can report incidents of sexual harassment. Dr. Morgan further requests that all staff in the Counselling Services Department be required to take a seminar and/or course which would include information on the definitions of sexual harassment and the University’s protocols for responding to complaints of sexual harassment.

204Again, I do not find these proposed remedies are warranted given the nature of my findings. I do not find that the University failed in its duty to respond to Dr. Morgan’s complaint. And while I have indeed found that Dr. Morgan was harassed by a fellow member of Counselling Services on one occasion, I do not agree that human rights training or education is required for the Counselling Services Department in order to ensure future compliance with the Code.

ORDER

205The Tribunal makes the following Orders:

a) Mr. Mackay is liable to pay the Dr. Morgan the sum of $7,500 in monetary compensation for injury to her dignity, feelings, and self-respect together with $278 for Dr. Morgan’s medical expenses.

b) Post-judgment interest is payable from the date of this Decision, in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, if the above amounts are not paid to the Dr. Morgan within 30 days of the date of this Decision.