Law v. Noonan, 2013 HRTO 437

B E T W E E N:

Kristina Law Applicant

-and-

Michael Noonan Respondent

DECISION

Adjudicator: Douglas Sanderson Date: March 14, 2013 Citation: 2013 HRTO 437 Indexed as: Law v. Noonan

APPEARANCES

Kristina Law, Applicant Self-represented

Michael Noonan, Respondent Self-represented

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and sexual solicitation or advances.

2The hearing in this matter was held on August 27, 2012 in Kingston Ontario. The applicant testified, as did the respondent and his wife, Laurie Noonan. The parties entered eight documents into evidence.

BACKGROUND

3The applicant began working for Brothers Quality Meats (“Brothers”), which is owned and operated by the respondent, on March 16, 2010. The applicant worked for Brothers until August 10, 2010, when the respondent terminated her employment. The applicant alleges that the respondent subjected her to sexual harassment and sexual solicitation during her employment and reprisal under the Code as her employment was terminated because she complained about the respondent’s behaviour.

Section 45.1 and Employment Standards Act Claim

4The applicant filed a complaint with the Ministry of Labour ("MOL") alleging violations of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the ESA”) prior to the termination of her employment. The complaint also included allegations that employees of Brothers were subjected to unsafe working conditions, including exposure to unknown chemicals, contrary to the Occupational Health and Safety Act, R.S.O., c. O.1. (“the OSHA”). An Employment Standards Officer ("ESO") investigated the complaint as it related to the claims made by the applicant under the ESA and the respondent filed the ESO's investigation report ("the report") as part of his pre-hearing disclosure. On its face, the report indicates that the applicant complained of violations of the ESA and alleged that she had been subject to sexual harassment. Although it appears the applicant filed this complaint shortly before her dismissal, the ESO investigated the complaint after the termination of her employment and included this issue in the investigation. The report included conclusions regarding the termination of the applicant’s employment. The ESO reported that the applicant stated that the respondent dismissed her with termination pay when she informed him she would file a claim with the MOL. The ESO reported that the employer terminated the applicant’s employment due to performance concerns and insubordination. The ESO accepted the respondent’s explanation and stated “It is reasonable to conclude that the claimant would have or should have been aware that her actions would justify immediate disciplinary action, up to and including termination with cause. No Reprisal found.”

5 Section 45.1 of the Code states as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6Following the close of their evidence, I directed the parties to make submissions regarding whether the ESO investigation amounted to a “proceeding” that had dealt with the substance of all or part of the Application within the meaning of Section 45.1 of the Code. I confirmed this direction and provided a timetable for submissions in a Case Assessment Direction, dated September 6, 2012.

Submissions

7The applicant provided the employment standards claim that she filed with MOL. The applicant submitted that the claim was for unpaid wages and eating and rest periods. The applicant submitted that under "Other" she made "a few notes" regarding the harassment she experienced while working for the respondent, but that the ESO informed her that these are matters for the Tribunal to address. Accordingly, the applicant filed this Application. The applicant submitted that she did not file a claim alleging reprisal or harassment to the MOL.

8The respondent submitted that the ESO decision did not address the investigation of the applicant's harassment claims. The respondent speculated that the ESO did not wish to interfere with the Tribunal, since the ESO directed the applicant to file an Application. However, the respondent submitted that the MOL investigated the applicant's allegation of workplace harassment, pursuant to the OHSA which prohibits workplace harassment and violence. The respondent submitted that the investigator spoke to the respondent's employees and informed the respondent that he found no evidence to support the harassment allegations. The investigator did not include any findings about this issue in the investigation report.

9In reply, the applicant submitted that the MOL's health and safety investigation dealt only with the use of unknown chemicals, and did not address workplace sexual harassment, as she did not make that claim to the MOL. Similarly, the applicant stated that she did not file a reprisal claim with the MOL because that claim is based upon her claim for harassment and sexual harassment.

Analysis and Decision

10The Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, dealt with the interpretation of section 27(1)(f) of the British Columbia Human Rights Code (the “B.C. Code”), which is nearly identical to section 45.1 of the Code.

11The Supreme Court of Canada found that section 27(1)(f) of the B.C. Code was intended to ensure finality in decision making and to avoid re-litigation of issues. The section did not confer upon the B.C. Human Rights Tribunal the authority to review the processes and decisions of other tribunals. In assessing whether the substance of a complaint has been appropriately dealt with in another proceeding, the Court stated that a Tribunal should ask itself two questions:

“…whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself…” (at paragraph 37).

12The Tribunal has found that the analysis adopted in Figliola, above, applies in Ontario and binds the Tribunal. See: Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at paragraph 25.

13The Tribunal has found that an investigation by an ESO amounts to a proceeding under section 45.1. See Reid v. Advantage Personnel Limited, 2012 HRTO 1742; Pinheiro v. Maritz Canada, 2012 HRTO 540; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443; and Cristiano v. Grand National Apparel Inc., 2012 HRTO 991. Anti-discriminatory legislation is subject to the concurrent and overlapping jurisdiction of an array of administrative decision-makers. See: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513; and Prelogar v. Fine Line Imports Inc., 2011 HRTO 1458.

14The Tribunal may consider whether the Application arises from the same facts as the other proceeding, whether the substance of the issues raised in each forum was substantially the same and whether the matter was appropriately dealt with in the other proceeding. In Paterno v. Salvation Army, 2011 HRTO 2298, the Tribunal stated as follows at paragraph 25:

This Tribunal has emphasized throughout its jurisprudence on s. 45.1 that in applying the section, the analysis should not be technical, but should focus on the goals of preventing relitigation of the substance of issues decided elsewhere. Where the result of the other proceeding disposes, in essence, of the issues before this Tribunal, the Application must be dismissed. For example, in Campbell v. Toronto District School Board, 2008 HRTO 62, 2008 HRTO 62, the Tribunal found that the analysis applied by the Special Education Tribunal in an appeal under the Education Act, R.S.O. 1990, c. E.2, as amended, appropriately dealt with issues under the Code, because the essence of the analysis was the same even if the Code was not directly applied. In Qiu v. Neilson, 2009 HRTO 2187, 2009 HRTO 2187, the Tribunal found that where the factual findings made in another proceeding preclude a finding of discrimination, an Application must be dismissed even if the other proceeding did not specifically apply the Code. In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, 2008 HRTO 149, the Tribunal found that where a party settled a previous proceeding that included the essence of the human rights matter, the Application should be dismissed under s. 45.1. In Cunningham v. CUPE 4400, 2011 HRTO 658, 2011 HRTO 658, a complainant who narrowed the allegations in the previous proceeding to exclude human rights issues was precluded from later pursuing the human rights issues at the Tribunal. If there is a legal or factual finding in a previous proceeding, whether explicit or implicit, that makes it impossible for an Application or part of an Application to succeed, the Application or part must be dismissed.

THE EVIDENCE – SEXUAL HARASSMENT

The Applicant

18The applicant testified that she began working for Brothers, which is owned and operated by the respondent, on March 16, 2010 in a “Counter Help” position. Her evidence was that she received work clothing that was too small for her and therefore wore her own clothing and wore a sweater over her T-shirt. The applicant stated that she was advised not to wear loose fitting clothing because it looked sloppy. According to the applicant, she got along well with the employees in the store, including the respondent, for her first two weeks of employment. After her second week of employment, however, the applicant testified that the respondent became increasingly vulgar and argumentative. The applicant stated that the respondent and his wife made inappropriate comments about the applicant's breast size and that of other women. For example, the applicant testified that the respondent would regularly make comments to the effect that the applicant wore a "training bra" and that she "looked like a 12-year-old boy".

19The applicant's evidence was that on or about April 29, 2010 the respondent led a male co-worker to believe that the applicant was the respondent's wife. The applicant stated that she corrected this misunderstanding with the co-worker and raised the issue with the respondent. According to the applicant, the respondent responded to the effect of "Who cares what anyone else thinks. I would sleep with you both" (i.e., either the applicant or his wife).

20The applicant described an incident in which the respondent walked around the store groping his groin area and commenting to male employees that he had "scabs" on his “privates” and asked them if they had the same problem. The applicant stated that Ms. Noonan, the respondent's wife, said that she was used to hearing this kind of thing from the respondent.

21The applicant testified that on July 24, 2010 business was slow and the respondent thought it was funny to suggest to the applicant that she should dance outside of the store naked to draw in customers. The applicant stated that the respondent said this regularly.

22The applicant testified that towards the end of July 2010 the respondent asked the employees if they wanted to hear a joke. According to the applicant, the respondent proceeded to tell a sexually explicit joke. There is no dispute that the respondent told the joke, although the applicant and respondent differ somewhat regarding the context of the situation. The joke, however, is central to the Application; therefore, it is regrettably necessary to set it out in the Decision, as follows:

Q: “What’s the worst part of eating bald pussy?”

A: “Putting the diaper back on.”

23The applicant's evidence was that the respondent often slapped her buttocks with a towel. The applicant also testified that throughout her employment the respondent would come up behind her and Ms. Noonan when they were bent over the meat counter and pretend to "hump" them with a sausage.

24The applicant acknowledged that on or about July 25, 2010 the respondent gave her a letter to sign, certifying that she was aware of certain meat handling procedures. The applicant refused to sign the document because she had not been given any procedures or regulations to review and did not know what she was signing.

25The applicant testified that on August 3, 2010 she observed the respondent throwing out resumes and commenting that some candidates were "too fat" or "too ugly". The applicant informed the respondent that this was illegal, which started a fight between them.

26The applicant stated that the respondent became angry whenever she challenged his inappropriate behaviour and on one occasion he responded by telling the applicant to "suck his dick".

27The applicant’s evidence was that on August 3, 2010 at approximately 1:30 p.m. she pulled the respondent aside and expressed her concerns about the sexual comments made in the store, including the comments made about her breasts. The applicant stated that she informed the respondent that she was going to file a harassment claim. According to the applicant, the respondent told her to go home after she mentioned the claim.

28The applicant testified that on August 6, 2010 the respondent called her a "fucking retard" in front of customers and co-workers because she did not lock the door before starting to close the store. The applicant stated that she was angry and upset and confronted the respondent in a raised voice. The applicant’s evidence was that the respondent apologized, but told her to "take him to court" if she did not like the way she was treated.

29The applicant stated that the next day, August 7, 2012, the environment was hostile. The applicant stated that the respondent and Ms. Noonan said they would never hire another woman because "they can't take a joke". According to the applicant, Ms. Noonan told her to "go the fuck home" at approximately 3 p.m. and that she should look for another job. The applicant stated that she asked the respondent if she was fired. The respondent said no, but advised the applicant that he was not prepared to address Ms. Noonan’s behaviour because if he did she (Ms. Noonan) would not be sexually active with him and asked, rhetorically, "You’re not going to sleep with me – are you?". The applicant stated that she was upset and crying because the respondent thought her concerns were a joke. According to the applicant, the respondent told her to take Sunday off and come to work on Tuesday.

The Respondent

30The respondent and Ms. Noonan testified and addressed issues that were raised in the applicant’s testimony. Both also gave evidence to allegations that were raised in the Application, but for which the applicant did not address in her testimony. This evidence is highlighted in the summary of the respondent’s evidence.

31By way of opening statement, the respondent stated that he was always careful about his behaviour in the workplace. The respondent submitted that he could not run his business if he behaved in a manner described by the applicant.

32The respondent testified that the applicant was expected to wear nice clothes to work and not to look sloppy, as were all employees. The respondent denied that he ever commented on the applicant's breasts and stated that he does not care about her cup size. The respondent's evidence was that Ms. Noonan joked about her own breast size and that the applicant laughed with Ms. Noonan about this. While the applicant referenced a statement made on June 20, 2010 about her breast size in her Application, she did not testify at the hearing about this allegation. The respondent, nonetheless, testified in response to this allegation that this would not have occurred, as alleged, as Ms. Noonan was not at work that day because she does not work on Sundays.

33The respondent testified that the applicant did not want to wear the work clothes provided to her, even when she was given other shirts to wear. According to the respondent, the applicant instead wore her own clothing, which he described as fairly revealing because one could see the tattoos on her chest, her bra straps were visible and she wore Lululemon pants. The respondent stated that on Sundays the applicant wore whatever she wanted and sometimes left her piercings in. The respondent's evidence was that the applicant did not comply with his directions to change her clothing and eventually had to ask Ms. Noonan to force the applicant to comply. The respondent described Brothers as a "high-end meat shop". Accordingly, he would not ask the applicant to wear revealing clothing. He noted that it is too cold inside the store to wear skimpy clothing. The respondent also denied the allegation contained in the written Application that he told the applicant to be less "frigid". The applicant did not provide testimony at the hearing on this allegation. The respondent entered into evidence pictures of employees in the clothing provided by the respondent to demonstrate the style of clothing that employees were expected to wear at the workplace.

34The respondent acknowledged the incident in which an employee believed that the applicant was the respondent's wife. The respondent explained that the employee was new, but was aware that the respondent’s wife also worked at the store. The employee mistakenly assumed the applicant was the respondent's wife because Ms. Noonan was not at work that day and the applicant was the only female employee present that day. The respondent's evidence was that he corrected the employee and he did not tell the applicant that he would sleep with her or his wife.

35The respondent agreed that the applicant refused to sign an acknowledgment that she had read and understood the employee training program and would abide by the plant's procedures and regulations. The respondent stated that the applicant had received on-the-job training and was also provided with the regulation book that was "4 inches thick".

36The respondent testified that on or about July 8, 2010 the applicant came into work wearing a "half shirt" and skin tight pants. The respondent agreed that a tattoo was visible on applicant's stomach, but denied that he asked her "how far down" the tattoo went. This was another allegation that was referenced in the applicant’s written Application, but for which she did not testify to at the hearing. The respondent stated that he was aware of the applicant's tattoos because she spoke about them. For example, the respondent stated that the applicant advised that she had a "beluga" tattoo on her buttocks. The respondent stated that he did not care about the applicant's tattoos.

37The respondent denied that he ever asked the applicant to "strip" to bring in customers on July 24, 2010. The applicant stated that in fact July 24, 2010, a Saturday, was a busy day with sales of approximately $6,000.00. The respondent's evidence was that one of his employees named Shawn was a "good-looking kid" and that the 40-year-old women liked him. According to the respondent, Ms. Noonan would sometimes joke with Shawn that he should go outside and dance to bring in female customers. The respondent stated that Shawn laughed at the joke and that the applicant also thought it was funny.

38The respondent denied that he was in the habit of "grabbing" his testicles. Rather, the respondent explained that one of his male employees had a bad habit of "pulling on his privates", which led to complaints, including from the applicant. The respondent advised the employee in question to stop doing this and demonstrated what customers were seeing by grabbing his own testicles. The respondent stated that he tried to make a joke of the situation by telling the employee that "if he had scabs" then the employee should get it "checked out". The respondent's evidence was that this conversation occurred at the back of the store when the applicant was at the front of the store and that she was not party to the discussion.

39The respondent testified that by August 3, 2010 he concluded that he would dismiss the applicant. He denied, however, that he commented on the candidates in front of the applicant or that he ever told the applicant to "suck his dick". The respondent did not recall the applicant ever "bursting into tears" in his presence, which was an allegation set out in the Application.

40The respondent stated that the applicant's mother had fallen ill on or about August 1, 2010 and was in the hospital. The applicant had been absent on August 1, 2010 as a result. On August 3, 2010, the applicant seemed unhappy and was moping about. Ms. Noonan asked the applicant if she wanted to leave work so she could visit her mother, which the applicant did.

41The respondent’s evidence was that the applicant was a good worker, but liked to leave right at 6 p.m., when the store closed. As a result, the applicant would begin to close the store before 6 p.m. On August 6, 2010, the applicant and two other employees began closing the store at approximately 5:30 p.m. The result was that some customers left disappointed, which is not a good business practice. The respondent acknowledged that he became angry and asked the applicant and one of the other employees if they were "fucking retarded". According to the respondent, the applicant became angry and screamed at Ms. Noonan, who made a gesture indicating that she was not responsible for the comment and the applicant should speak to the respondent. The applicant then came to the respondent and yelled at him. The respondent's evidence was that he apologized and explained that he lost his temper.

42The respondent stated that the next day, August 7, 2010, the applicant was clearly unhappy and her work was poor; therefore, Ms. Noonan told her to go home if she did not want to be at work. The respondent observed that by this point the relationship with the applicant was "in the toilet" and had been deteriorating ever since the applicant refused to sign the acknowledgment regarding work regulations and procedures. The respondent’s evidence was that the applicant did not leave at first, but eventually agreed to go home sometime between 3 and 4 p.m. The respondent wanted to speak with the applicant and, after he expressed his concerns, the applicant "exploded" on him. According to the respondent, the applicant stated that she wanted Ms. Noonan fired and did not like the way Ms. Noonan treated her. The respondent stated that he allowed the applicant to vent and advised her that if she started getting along with her co-workers, there would be no need to reprimand her and everything would be fine. The respondent’s evidence was that the applicant seemed happy when she left and everything seemed fine. The respondent denied that he advised the applicant that he would not raise any issues with Ms. Noonan because Ms. Noonan would not be sexually active with him. He also denied that he suggested that the applicant should sleep with him. Rather, the respondent stated that he informed the applicant that if she could not "work things out" with Ms. Noonan, then maybe the applicant should look for another job. The respondent also stated that the applicant threatened to go to the Labour Board against Ms. Noonan if she was fired.

43The respondent agreed that he told the joke described by the applicant. The respondent stated that Brian, an employee, first told the respondent the joke when asked to tell the most disgusting joke he knew. According to the respondent, the applicant asked to hear the joke and the respondent repeated it to her. The respondent stated that the applicant laughed, but said that the joke was disgusting and walked away.

44The respondent denied that he ever hit the applicant with the towel. He allowed that the male employees may have done this to each other, but it was not permitted with female employees.

45In cross-examination, the respondent stated that he did not fire the applicant for wearing inappropriate clothing because he could not afford to lose her and could not be fighting all the time. The respondent stated that he hoped the applicant's performance and behaviour would improve and gave her a raise to encourage her. The respondent stated that the relationship deteriorated after she refused to sign the acknowledgment regarding regulations and procedures.

46Laurie Noonan is the respondent's wife and also works at Brothers in a supervisory capacity. Ms. Noonan testified that they do not want their employees looking "sloppy" at work. Ms. Noonan stated that the applicant had the choice of the size and colour of shirts to wear at work. According to Ms. Noonan, the applicant never complained about the work clothes provided to her. Rather, the applicant simply did not wear them. Ms. Noonan's evidence was that she never spoke about the "cup sizes" of other employees and denied that the respondent commented on the size of the applicant's breasts.

47Ms. Noonan testified that she was not at work when an employee believed the applicant was the respondent’s wife.

48Ms. Noonan denied that she and the respondent commented on the applicant's tattoos on July 8, 2010, which again was an allegation the applicant made in the Application, but did not give evidence about in the hearing. She admitted that she has knowledge of the applicant's tattoos as they were visible because the applicant's top was "high" and her bottom was "low". Ms. Noonan's recollection was that she and the respondent looked away from the applicant in order to "not get caught looking".

49Ms. Noonan acknowledged that she sometimes joked with Shawn that he should skateboard naked in front of the store with an apron backwards like a cape to bring in customers.

50Ms. Noonan's evidence was that the applicant complained that a male employee was constantly "grabbing himself" and asked the respondent to talk to him about it. The respondent did so and spoke to the employee at the back of the store, demonstrating how it looked. According to Ms. Noonan, the applicant wanted to know what was being said. She therefore asked the respondent and the co-worker what was going on and they told her. Ms. Noonan stated that the applicant made no complaint.

51Ms. Noonan stated that some resumes had been placed on the counter. However, she and the respondent did not discuss the resumes with staff. Ms. Noonan’s evidence was that whomever candidates may be or what they look like is none of the staff’s business. Ms. Noonan agreed that the respondent called the applicant "retarded" on August 6, 2010. The applicant started covering the counter before closing and customers could not see the product. The respondent became angry and yelled at the applicant. Ms. Noonan stated that the applicant in turn became angry and began yelling at Ms. Noonan. Ms. Noonan did not say anything in response, but motioned for her to deal with the applicant.

52Ms. Noonan's evidence regarding the next day, August 7, 2010, was that the applicant would not speak to her. At approximately 4 p.m. Ms. Noonan informed the applicant that if she did not want to be at work, then she should leave. Ms. Noonan explained that this did not mean that the applicant was dismissed. Ms. Noonan stated that she later learned from the respondent that the applicant was angry with her.

53Ms. Noonan’s evidence was that Brian first told the joke described by the applicant. According to Ms. Noonan, the applicant asked to hear the joke and Ms. Noonan advised her that she did not want to hear it. The applicant persisted and the respondent repeated the joke to her.

54Ms. Noonan testified that the male employees may hit each other with towels, but never the female employees, as this was not permitted. Ms. Noonan stated that there was "no way" the respondent would come up behind her with the sausage because it would have been very visible and seen from within the store. Ms. Noonan's evidence was that the applicant was argumentative from the beginning of her employment and would not follow instructions from other, more experienced, employees. Ms. Noonan testified that she and the respondent considered dismissing the applicant sooner, but she showed signs of improvement and therefore they chose not to.

55In cross-examination, Ms. Noonan explained that the applicant received a raise and was allowed to continue employment because she began to get along with staff. Ms. Noonan also stated that the applicant had always been good with customers and was good at preparing product.

Reply Evidence

56In reply, the applicant stated that when she first started working for Brothers, Ms. Noonan worked every Sunday and later took some Sundays off. The applicant stated that she did not recall another employee "grabbing himself", but did see the respondent doing this. Consequently, the applicant had no reason to complain about the other employee. The applicant stated that the issue on August 6, 2010 was that she failed to lock the door and a customer came in after closing.

57The applicant agreed that Ms. Noonan spoke about her own chest size. The problem, however, was that the respondent spoke about the applicant’s chest size, which was not appropriate.

ANALYSIS AND DECISION

58The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the violation occurred. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46.

59In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:

…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 demeanor 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.

Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.

60In this case, the evidence regarding the alleged incidents of sexual harassment came entirely from the applicant, the respondent and Ms. Noonan, all of whom clearly have an interest in the outcome of the case. There was little documentary or other evidence regarding these allegations. Much of the evidence involved classic “he said / she said” scenarios, in which the only evidence is the applicant’s allegations and the respondent’s denials. As noted, the applicant has the onus of proving her allegations, and in these circumstances, I must determine if there is sufficient evidence, detail or context to find that the incidents occurred as the applicant alleged. See: Chard v. Newton, 2007 HRTO 36. As is set out below, I find that the applicant has not discharged her onus of establishing a prima facie case of discrimination with respect to several of her allegations. These conclusions do not mean that I have found the applicant’s evidence to be dishonest, but rather, that she did not meet the burden of proof.

61As already noted in these reasons, the applicant’s testimony did not address all the allegations of harassment as set out in her Application and in other instances her testimony was inconsistent with the facts alleged in the Application. The respondent did not cross-examine the applicant on the discrepancies between her testimony and the Application – there were several – and they were not put to her for the purposes of impeachment. I did, however, provide the applicant with an opportunity to review her materials prior to the close of her evidence in chief to ensure that she had presented all of her intended evidence. The applicant took this opportunity to present additional evidence, but did not address the differences between her testimony and the Application. These discrepancies are of concern, but I am mindful of placing undue weight on discrepancies about which the applicant was not directly asked. Rather, I have based my decision on the evidence as it was presented at the hearing.

62For the reasons set out below, I find that the respondent sexually harassed the applicant when he told a vulgar joke and when he groped himself and made a joke about venereal disease in connection with that gesture. The material facts regarding these incidents were not in dispute. Regarding the disputed allegations, I find that the applicant has not proven the other allegations of sexual harassment on a balance of probabilities either because the applicant did not provide sufficient evidence or because I found the respondent and Ms. Noonan to be more credible on specific aspects of the allegations in question.

Mistaken Identity

63There is no dispute that that an employee was under the impression that the applicant was the respondent's wife. I cannot find, however, that the respondent caused this misperception or made the statement the applicant attributed to him to the effect that he did not care what the employee thought and that he would sleep with either the applicant or Ms. Noonan. The applicant did not explain how the respondent led the co-worker to believe that she was the respondent's wife and this appears to be an assumption on her part. I find the respondent's explanation for the employee’s misperception to be credible, i.e., that the new employee assumed the applicant was the respondent's wife because she was the only female working that day. This explanation is consistent with the respondent's evidence, corroborated by Ms. Noonan, that Ms. Noonan was not at work that day and did not witness the exchange between the applicant and respondent, as alleged in the Application.

Work Clothes

64I accept that requiring an employee to wear tight fitting and/or revealing clothing could amount to sexual harassment. However, I find that the respondent did not require the applicant to wear inappropriate clothing. Ms. Noonan's uncontradicted evidence was that the applicant received work T-shirts in the size and colour she requested, but chose to wear her own clothing. According to Ms. Noonan, the applicant did not complain about the clothing provided to her. I found Ms. Noonan to be a credible witness who gave her evidence in a straightforward manner, without embellishment and who was prepared to admit unflattering behaviour. The respondent adduced pictures of employees wearing the T-shirts in question worn under an apron. The T-shirts have typical round collars and are neither revealing nor tight fitting. The applicant did not object to the pictures or suggest that they did not accurately depict the T-shirts worn by the respondent's employees. Consequently, I do not accept the applicant’s evidence that she was required to wear inappropriate clothing and, in this regard, I found her evidence to be exaggerated in light of the photographs of workers apparel provided by the respondent.

Comments about Physical Appearance

65Ms. Noonan acknowledged that she did joke and comment on the size of her own breasts, but both she and the respondent denied commenting on the applicant's appearance or that of any other person. The applicant’s evidence on this allegation amounts to general accusations that the respondent engaged in this behaviour on a regular basis and did not provide sufficient detail or context to assess this allegation against the respondent's denial. The respondent was also able to give evidence about specific allegations made in the Application, but not described in the applicant’s evidence. For example, the respondent’s evidence that he and his wife could not have made comments to each other on June 20, 2010 (as alleged in the Application) since Ms. Noonan was not at work. Accordingly, there is sufficiently reliable and persuasive evidence to doubt the accuracy of the applicant’s evidence as I find the respondent’s evidence on this issue was more detailed than the applicant’s and demonstrated a better ability to recall facts.

66The respondent and Ms. Noonan both acknowledged that they were aware that the applicant had tattoos and could see the tattoo on her stomach because she wore shirts that exposed her midriff. This is an example of the respondent addressing allegations contained in the Application, but for which the applicant did not provide testimony at the hearing. The respondent's evidence was that he did not care about the applicant's tattoos, but denied that he asked "how low" the applicant’s stomach tattoo went. Ms. Noonan corroborated the respondent's denial and stated that she and the respondent actually looked away in order not to be "caught looking" at the applicant's tattoo. The respondent provided the only evidence regarding this allegation, which was not contradicted by the applicant. In the circumstances, I cannot find that this incident occurred, as alleged.

Attracting Customers

67Ms. Noonan also acknowledged that she sometimes joked with a male employee, Shawn, that he should skateboard naked outside the store to attract customers. Although the applicant stated that the respondent regularly joked that she should dance naked outside, she gave only one example of this occurring - on July 24, 2010 - when the applicant stated that business was slow. The respondent's uncontradicted evidence was that July 24, 2010, being a Saturday, was a particularly busy day in which Brothers had sales of $6,000.00. Accordingly there was no need to attract business. I prefer the respondent's evidence regarding the allegations of July 24, 2010 as his evidence is more detailed and specific and I find his explanation to be persuasive. Given the complete lack of evidence regarding any other incident of this nature, I also find that applicant has not established on a balance of probabilities that the respondent told her to dance outside the store on July 24, 2010 or on any other occasion.

68Similarly, the applicant's evidence was that the respondent regularly referred to her as "looking like a 12-year-old boy", which the respondent denied. However, the only example she offered of this comment was in her Application and was in connection with the alleged joke that she should dance to attract customers. I have found the respondent’s evidence regarding this incident to be more reliable. This is another example of the applicant making bald allegations, without sufficient context or detailed evidence to allow me to making findings of fact on a balance of probabilities. Consequently, I cannot find, on a balance of probabilities, that the respondent made these comments.

Horseplay

69The applicant’s evidence was that the respondent would regularly hit her in the buttocks with a towel. The respondent acknowledged that male employees sometimes hit each other with towels, but hitting the female employees was not allowed and Ms. Noonan’s evidence was consistent with the respondent’s. Again, the applicant’s evidence amounts to a general assertion, lacking any detail regarding the circumstances in which these alleged incidents occurred. The applicant did not provide other evidence at the hearing, for example, other employees, who could testify to the pattern of conduct alleged. Based on my understanding of the workplace, the applicant worked in an open area that would have allowed other employees to observe this conduct. In these circumstances, I cannot find that the applicant has established on a balance of probabilities that she was subject to this behaviour.

70The applicant also testified that the respondent would sometimes simulate sexual intercourse with the applicant or Ms. Noonan, using a sausage, when they bent over the meat counter. The applicant testified that this occurred frequently. However, this is another example of bald allegations made by the applicant without sufficient particulars or details. The respondent denied this allegation. This is a classic he said / she said scenario and, while the applicant indicated these alleged incidents occurred near the meat counter, she gave no indication regarding the frequency of the incidents, who may have been present or any other detail that may have allowed me to accept her evidence over the respondent’s. I find in the circumstances that the applicant provided insufficient context and detail, against the respondent’s denial, to find that such incidents occurred on a balance of probabilities.

Rude Invitation and Discarded Resumes

71The applicant’s evidence was that the respondent would sometimes tell her to "suck his dick" when she challenged his behaviour. She did not, however, give any specific examples of incidents in which she challenged the respondent’s behaviour and he responded in this fashion. Consequently, the allegation amounts to a bare assertion and the evidence is again insufficient to find that the respondent said this to the applicant.

72The applicant testified that she challenged the respondent’s demeaning characterization of job applicants while reviewing resumes, which started a fight. The respondent denied that he commented on the resumes in front of employees and Ms. Noonan’s evidence was that she and the respondent did not discuss candidates with employees. The applicant testified that this incident occurred on August 3, 2010, but provided no other details or context, such as where in the store the incident occurred, who was present, what she was doing etc., that may have allowed me to find that the incident occurred. I also find it unlikely that the respondent would bring attention to the fact that he was considering resumes, particularly with the applicant, since his evidence was that he received the resumes with a view to replacing the applicant. In light of the evident difficulties between the respondent and applicant, I accept this evidence.

73I also cannot find that the applicant confronted the respondent and informed him that she planned to file a harassment complaint. There was no dispute that the applicant’s mother had been hospitalized. I found credible the respondent's account that the applicant was allowed to leave work because her mother was in the hospital. The respondent's uncontradicted evidence was that the applicant had been absent on August 1, 2010 because of her mother's illness and appeared unhappy and unfocused at work on August 3, 2010. In these circumstances, I find it entirely plausible that the respondent allowed her to leave work for this reason and not because of a purported threat to file a harassment complaint.

August 6, 2010

74There is no dispute that the respondent referred to the applicant and a co-worker as "fucking retarded" on August 6, 2010 when he became angry with them. The applicant did not allege discrimination because of disability and there was no suggestion that she or the co-worker have intellectual disabilities or that the respondent perceived them to have such disabilities. Rather, the respondent was expressing, in an extremely crass and inappropriate manner, his assessment that the applicant and her co-worker were performing unsatisfactorily. Consequently, while respondent’s behaviour was hardly creditable, it did not amount to a violation of the Code.

August 7, 2010

75There is no dispute that Ms. Noonan directed the applicant to go home towards the end of the workday on Saturday, August 7, 2010. The explanation offered by the respondent and Ms. Noonan was that the applicant was unhappy, would not communicate with Ms. Noonan and performed poorly. I find this explanation plausible and, importantly, the applicant did not contradict it. There is also no dispute that the applicant and respondent spoke before she left. I accept the respondent's account of the conversation, i.e., that he expressed concerns about the applicant's performance and advised her that she could not get along with Ms. Noonan, then she should consider looking for another job. I find that expressing such concerns is entirely consistent with the fact that the applicant had been sent home because of her performance and attitude. The respondent’s evidence was that the applicant indicated that she was unhappy with Ms. Noonan and wanted him to address Ms. Noonan’s behaviour. However, it is clear that the respondent considered the applicant to be the problem, not Ms. Noonan. Accordingly, I find it unlikely that he would state that he would not raise the applicant's concerns with Ms. Noonan for fear that Ms. Noonan would cease sexual activity with him when he did not share those concerns.

76I also cannot find that the respondent and Ms. Noonan commented to the effect that they would never hire another woman because “they cannot take a joke”. It seems unlikely that the respondents would make such a statement, since it was not disputed Ms. Noonan and the applicant were not the only women working at Brothers. The comments was allegedly made in the context where the applicant was performing poorly and displaying a poor attitude at work as a result of the harsh reprimand she received the previous day, again for poor performance. There is no evidence indicating that the respondent’s concerns relating to the applicant’s performance were related to her gender and it is clear that by August 7, 2010 the respondent and Ms. Noonan had significant concerns about the applicant as an employee. Nothing suggests that the respondent or Ms. Noonan considered anything that occurred regarding the applicant on August 6 or 7, 2010 to be humorous or that the applicant should treat it that way. In these circumstances, I find it unlikely that either the respondent or Ms. Noonan stated either that they would not hire women in the future or suggested the applicant could not “take a joke”.

Self-Groping

77There was no dispute that the respondent touched his testicles and made a reference to venereal disease ("scabs"). The parties part company regarding how this incident unfolded and their respective evidence was internally consistent. However, I have found that the applicant’s evidence in some cases to be exaggerated and unreliable and I find that her evidence is less credible, generally, than the respondent’s. Accordingly I find that this incident occurred as the respondent and Ms. Noonan described. Although it appears the applicant embellished this incident, the fact remains that the respondent touched his testicles in the workplace (and was seen doing so by the applicant) and joked about an employee having venereal disease in the applicant's presence. The respondent’s evidence was that the applicant complained about another employee groping himself in the workplace. In these circumstances, I find that the respondent knew or ought to have known that groping himself (even as a demonstration) and making jokes about the practice would not be welcomed by the applicant.

Vulgar Joke

78In my view, it is not necessary to determine whether the respondent first told the vulgar joke to the applicant or repeated it after hearing it from another employee. In any case, there is no dispute that the respondent told a highly offensive sexual joke to an employee. The respondent’s evidence was that the joke was selected because it was offensive and that the applicant stated it was disgusting. Consequently, I find the respondent knew or ought to have known that telling this joke to the applicant would be unwelcome.

SUMMARY OF FINDINGS

79I find that the respondent on one occasion told a vulgar sexual joke and on another occasion made a sexual joke in connection with a sexual gesture (self-groping) that he knew or ought to have known were offensive.

80 Section 7(2) of the Code states as follows:

Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

81 Section 10 of the Code defines “harassment “ as follows:

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

82Section 46.3(1) states as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

I find that the jokes and gesture violated section 7(2) of the Code. The evidence also indicates that Ms. Noonan made comments about her own breasts and made sexually charged jokes with employees, which arguably also violate section 7(2) of the Code. Ms. Noonan, however, was not a respondent to this Application and, pursuant to section 46.3(1), the respondent, the owner/operator of Brothers, is not responsible for the actions of employees that violate section 7(2).

REMEDY

83The Tribunal’s remedial authority is set out in section 45.2 of the Code as follow:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

84An award of compensation for injury to dignity, feelings and self-respect is intended to recognize the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.

85In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54:

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

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

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

86In S.S. v. Taylor, 2012 HRTO 1839, the Tribunal recognized the wide range of awards in cases involving jokes and gestures, depending on the facts in each individual case, at paragraph 86:

Findings of discrimination based on sexual harassment arising from comments or gestures (but not involving touching) have attracted a range of compensation for injury to dignity, feelings and self-respect: see, for example, Haykin v. Roth, 2009 HRTO 2017, 2009 HRTO 2017 ($300); Gregory v. Parkbridge Lifestyle Communities Inc., 2011 HRTO 1535, 2011 HRTO 1535 ($1,000); Romano v. 1577118 Ontario Inc., 2008 HRTO 9, 2008 HRTO 9 ($,1000); Harriott, supra ($7,500); Payette v. Alarm Guard Security Service, 2011 HRTO 109, 2011 HRTO 109 ($18,000); and Smith v. Menzies Chrysler, supra ($50,000 in total, against several respondents). Cases on the higher end of the spectrum have tended to involve orders against not just the harassor, but also the employer who failed to ensure that the workplace was free from sexual harassment.

87The applicant stated she found the respondent’s behaviour so humiliating that she left Kingston. I accept that the applicant found this behaviour distressing and that, as an employee, she was in a vulnerable position. Beyond that, however, the applicant provided very little indication of the effect the respondent’s harassment had upon her. For example, there was no evidence that the applicant suffered any particular emotional difficulties or that her circumstances made the effects particularly serious upon her. The evidence established only two incidents of harassing behaviour that, while by no means trivial, were objectively less serious than the incidents of sexual solicitation, touching and persistent conduct over a longer period that have resulted in higher awards for injury to injury to dignity, feelings and self-respect.

88In the circumstances of this case an award of $3,000.00 is in my view appropriate.

ORDER

89In the result, I order:

Within 30 days of the date of this Decision, the respondent will pay the applicant $3,000.00 as monetary compensation for injury to dignity, feelings and self-respect;
The respondent shall pay pre-judgment interest on this amount from August 18, 2010, the date of the Application, to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43.; and,
In the event that the respondent fails to make the payment described above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O 1990, c. C.43.

Dated at Toronto, this 14th day of March, 2013.

“Signed by”

Douglas Sanderson Vice-chair