HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Smith

Applicant

-and-

The Rover’s Rest and Bruce Dorman

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: April 25, 2013

Citation: 2013 HRTO 700

Indexed as: Smith v. The Rover’s Rest

appearances

Deborah Smith, Applicant ) Victoria Shen, Counsel

The Rover’s Rest and Bruce Dorman, ) Self-represented

Respondents ) )

INTRODUCTION

1The applicant worked as a bartender for the respondents. She filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected her to sexual harassment and advances, and discrimination and harassment because of her sex, with respect to employment. The Application was later amended to include the ground of reprisal. The respondents filed a Response, which denied the allegations.

2The parties attended a hearing of the merits of the Application where they had the opportunity to call witnesses, enter documents into evidence as exhibits, and make submissions. The purpose of this Decision is to determine whether the applicant has proven on a balance of probabilities that the respondents infringed her rights under the Code, and if so, whether the Tribunal should make an order to remedy the violation of the Code.

3The Application is upheld. I have decided that the applicant has proven, on a balance of probabilities, that the respondents subjected her to sexual harassment and advances, discrimination and harassment because of her sex, and reprisals, with respect to employment. I have ordered the respondents to pay the applicant monetary compensation and receive training to remedy the violations of the Code.

BACKGROUND

4The organization respondent, The Rover’s Rest, was a bar in Ajax, which was owned and managed by the individual respondent. The applicant worked as a bartender at the Rover’s Rest between February and September 2009.

5On November 8, 2009, the applicant filed her Application with the Tribunal. She alleged that the individual respondent subjected her to sexual harassment and advances during her employment, terminated her employment because she refused his sexual advances and he wrongly believed that she was in a relationship with someone else, and delivered discriminatory, harassing and threatening letters to her after her employment ended.

6On February 2, 2010, the individual respondent filed a Response on behalf of himself and the Rover’s Rest. The individual respondent denied that there was any sexual contact between him and the applicant, but admitted that he became very fond of and attracted to her and asked her if they could have a relationship, which she declined because of their age difference (he was 66 years old and she was 39 years old). He also admitted that people made jokes in the bar, but stated that the applicant never indicated that anything that was said made her uncomfortable. He also admitted that he terminated the applicant’s employment, but stated that the reason for the termination was that she ignored his repeated warnings not to become involved with customers. The Response did not address the applicant’s allegation that the individual respondent delivered discriminatory, harassing and threatening letters to her after her employment ended.

7In an Interim Decision, 2012 HRTO 895, the Tribunal granted the applicant’s request to amend her Application to include the ground of reprisal.

8The hearing took place on May 10 and 11, 2012. The applicant was represented by counsel and the respondents were self-represented by the individual respondent. I heard the oral testimony of three witnesses (the applicant, her mother, and the individual respondent), and admitted into evidence a number of documents that were tendered by the applicant.

9The Tribunal took a number of steps to ensure that the respondents, who were self-represented, had a fair hearing. The Tribunal’s Hearing Notices set out the Tribunal’s Rules of Procedure on disclosure of documents and witnesses, and non-compliance with the Rules, and provided the web link to the Tribunal’s Rules, Guides, Policies, and Practice Directions. The Tribunal’s website has a number of guides and other documents to assist self-represented parties, including the Respondent’s Guide and the Plain Language Guide.

10Furthermore, the hearing originally took place on October 13, 2011. The applicant appeared at the hearing, but the respondents did not. I was satisfied that the respondents received notice of the hearing; therefore, the hearing proceeded and was completed in the respondents’ absence. However, on October 16, 2011, the individual respondent sent the Tribunal an e-mail, which stated that he was unable to attend the hearing because his brother had passed away in Northern Ireland. Although the respondents did not notify the applicant and the Tribunal prior to the hearing that they were unable to attend, the Tribunal granted the respondents’ request for a new hearing. See Interim Decision, 2011 HRTO 2188.

11Prior to the new hearing, I also issued an Interim Decision, 2012 HRTO 895, which directed the respondents to comply with Rules 16 and 17 of the Tribunal’s Rules on disclosure of documents and witnesses; reminded them that the Tribunal's Rules allow for the issuance of summons to witnesses, and, if needed, these are obtainable from the Registrar’s Office; and informed them that if they needed further assistance or information to prepare for the hearing, they should review the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario, which can be accessed on the Tribunal’s website.

12At the outset of the hearing, I also spent a fair amount of time explaining the hearing process in plain language. I also informed the individual respondent that, although I could not provide legal advice to him, I would provide him with information on the process as the hearing progressed, and answer his questions at any time. I also extended the individual respondent considerable leeway in presenting the respondents’ case, including prohibiting the applicant’s counsel from making any further objections after she had interrupted his testimony several times with objections, and directing him to provide further closing submissions in writing after he made oral submissions that did not fully address the applicant’s counsel’s oral closing submissions.

EVIDENCE

13The applicant testified that in 2009, she lived in her parents’ house with her parents and her teenage daughter.

14The applicant and the individual respondent both testified that in February 2009, the individual respondent, who was the owner and the manager of the Rover’s Rest, hired the applicant to work part-time as a bartender and paid her $7 per hour. They also testified that the individual respondent’s managerial responsibilities included supervising the applicant and other bar staff. They further testified that after the applicant started, she and the individual respondent would occasionally visit other bars together to see what their business practices were.

15The applicant testified that she and the individual respondent initially had a friendly and collegial relationship, but that in the spring or summer of 2009, the individual respondent began to express a romantic interest in her. She stated that when they were alone at work, he asked her to go to a movie with him twice, to go to dinner with him once, and to accompany him to a cottage once. She stated that his requests made her uncomfortable because there was a big age difference between them and she was not romantically interested in him. She stated that each time he made such a request, she said no, and told him that she was not interested.

16The applicant testified that the individual respondent also began making physical advances towards her at work. She stated that he would regularly invade her personal space by standing close to her, brushing up against her when he passed by her, putting both of his hands on her waist when he passed behind her, leaning into her body when he reached for ice near the cash register, and putting his arms around her and hugging her. In cross-examination, she admitted that it was difficult to get around another person behind the bar, but she stated that the normal practice was to simply touch the other person on the back with one hand.

17The applicant testified that the individual respondent was particularly fixated on her buttocks. She stated that he frequently patted her buttocks with his hand, made noises when she bent over, told her that she had a “nice ass” or used similar words, and said that he was going to bend her over the pool table and smack her bare ass.

18The applicant testified that on one occasion, when the individual respondent came back to the bar from a golf tournament, he called her into his office, told her that he had a hard time concentrating when he was playing golf because all he could think of was her ass, and gave her chocolate and roses. She stated that when she walked back into the bar, some of the customers asked her if she and the individual respondent were dating. She stated that she responded that they were not, threw the chocolate in the garbage, and left the roses on the bar. She stated that the following the day, the individual respondent became angry when he saw the roses on the bar and complained about the fact that she had not brought them home.

19The applicant admitted that, except on one occasion, she did not explicitly tell the individual respondent to stop sexually harassing her and making sexual advances towards her. Rather, she stated that she reacted to his physical touching by tensing up her body and refusing to make eye contact with him. She also stated that she tried to avoid him and not be in situations where he could touch her or make comments to her. She stated that the one occasion where she directly confronted him occurred after the second or third time that he said that he was going to bend her over the pool table and smack her bare ass. She stated that he made the comment in front of customers, so she told him that she did not appreciate his comment and that he should stop saying it. She stated that, despite telling him to stop, he made the same comment at least three more times in the bar.

20The individual respondent testified that he only went out with the applicant for work-related activities, such as visiting other bars to see what events and entertainers they had, and that if she saw their outings as something else, it was “all in her head.” In cross-examination, he denied that he ever had a romantic interest in the applicant, was in love with her, or asked her out on a date. When it was put to him that his Response to the Application and the letters that he delivered to the applicant after her employment ended (see below) stated that he had found her attractive, wanted to have a relationship with her, and/or still loved her, he maintained his denial. He stated that he only wanted to have a “work” relationship with her, and that is what he meant in those documents. He also stated that he uses the word “love” with a lot of people, and was not using it in a romantic sense with the applicant.

21The individual respondent also denied that he ever sexually harassed the applicant or made sexual advances towards her. Again, he stated that any such notions were “all in her head.” He admitted that he told the applicant that she was attractive and looked good, but denied that he told her that she had a “nice ass” or used similar words. He also denied he ever touched the applicant in a sexual way. He stated that personal space was limited behind the bar, and it was sometimes difficult to get around other staff.

22The individual respondent also denied that he told the applicant that he had a hard time concentrating when he was playing golf because all he could think of was her ass. He admitted that he gave her chocolate and roses after a golf tournament, but denied that his act was a romantic or sexual advance. He stated that the only reason that he gave them to her was to thank her for her hard work. He also stated that he gave chocolate and roses to a number of women who were in the bar on that day. He admitted that he asked the applicant why she had left the roses on the bar, but denied that he was angry.

23In her reply evidence, the applicant stated that she does not recall seeing any other women with chocolate and roses on the day of the golf tournament.

24In cross-examination, the individual respondent also admitted that he said that he was going to bend the applicant over the pool table and smack her bare ass, but stated that it was a joke and she laughed.

25The applicant testified that after she declined the individual respondent’s requests to go out with him and started avoiding him because of his physical advances towards her, he became jealous and possessive when he saw her interacting with other men in the bar. She stated that he would watch and listen in on her conversations with male customers, and then later, in an angry and agitated manner, demand to know what the conversations were about, wrongfully accuse her of sleeping with customers, and tell her that she should not behave like a “whore”, “slut” and/or “slag”.

26For example, the applicant testified that on one occasion one of her long-time male friends was in the bar, and the individual respondent overhead them talking about going out together after the bar closed. She stated that the individual respondent told her that she was not allowed to have boyfriends in the bar, and when she told him that he was just a friend, he asked her if the man was paying her for sex because he did not look like the type of person she would date.

27The applicant testified that on another occasion, another long-time male friend, who was elderly and whose nickname was Uncle Buck, was in the bar, and the individual respondent overheard that she was going up to his hunting camp. She stated that she was going to the camp not only with Uncle Buck, but also with his son, his son’s friends, and all their wives and girlfriends, but the individual respondent assumed that she and Uncle Buck were going there alone, accused her of going there to sleep with him, and forbade her from going because he said that it would give the bar a bad name. She stated that she told the individual respondent that what she does on her own time was not his business.

28The applicant also testified that she became friends with a male customer named Derrick, who was a regular at the bar. She stated that they occasionally went out for drinks together after she finished her shift, including on Thursday, September 17, 2009. She admitted that she and Derrick flirted with each other, but stated that their relationship was always platonic. She stated that on Friday, September 18, 2009, the individual respondent confronted her and asked her if she was seeing Derrick. She stated that she told him that she went out for drinks with him after work, but was not seeing him. She stated that, in response, the individual respondent told her that he could not employ her while she was “fucking” his customers, and terminated her employment.

29The applicant admitted that when the individual respondent confronted her about Derrick, he told her that there was a rule prohibiting staff from dating customers, but she stated that she had never been told about the rule up until that point, and even if there was such a rule, she never saw the individual respondent scrutinizing the interactions between other staff and customers.

30The individual respondent testified that when he opened the Rover’s Rest, his main interest was to ensure that the bar had a good reputation. He stated that the reputation of a bar is based on its owner and staff; if the owner and staff have a good reputation, the bar has a good reputation. Accordingly, he stated that he instructed staff not to date customers because he wanted to ensure that his customers were all treated equally, that they always paid for their drinks, and that they would not stop coming because of a failed relationship with his staff person. He stated that the applicant ignored his instruction. He stated that he heard from another female staff member that the applicant had told her to stay away from a customer named Derrick because he was hers.

31The individual respondent also testified that other people had told him that the applicant had behavioural and drug problems, and was a lesbian. He also stated that the applicant herself had told him that her sister had called her “dirty”. He also opined that the applicant is the way she is because she was raised by foster parents in a dysfunctional family, and that if her daughter is being raised in the same household, the Children’s Aid Society should be involved.

32In cross-examination, the individual respondent denied that he referred to the applicant as a “whore”, “slut” and/or “slag”. Rather, he stated that other people – mainly her friends – called her those names.

33The individual respondent admitted that he watched the applicant’s interactions with male customers, and suspected that something inappropriate was going on, but denied that he believed that she was sleeping with all her male customers. He also denied that he asked her if she was sleeping with customers, or that he terminated her employment because he believed she was sleeping with male customers. When asked specifically about Derrick and the termination of her employment, he admitted that he believed that she was sleeping with Derrick, but denied that he terminated her employment for that reason.

34Rather, the individual respondent stated that he terminated the applicant’s employment because she was damaging the reputation of his bar. Specifically, he stated that customers told him that she made crude jokes about giving blow jobs and they saw her leaving the bar with male customers, and that he overhead Uncle Buck say, in reference to the trip to his hunting camp, “Debbie was great last year and she will be great this year.”

35The applicant and the individual respondent both testified that after the termination of the applicant’s employment, the individual respondent hand delivered three letters to her home in the following days.

36On Saturday, September 19, 2009, the individual respondent came to the applicant’s home and gave the first letter to her mother, Doreen Smith. The applicant’s mother then gave the applicant the letter inside the house. The applicant testified that she became very upset when she read the contents of the letter and started crying. The applicant’s mother testified that when she saw the applicant crying, she asked her if she had been fired, and she responded that she had, but that was not the reason she was crying. The applicant refused to allow her mother to read the letter. The letter, which was admitted into evidence, stated:

Hi Debbi,

I am truly sorry our relationship in the bar had to end this way.

(…)

But I had no choice.

I have to be able to leave here and know the bar is in good hands. Recently I couldn’t do that with you, I was not sure what stupid stunt you would be getting up to, or with whom. You totally disregard what I say, and I couldn’t believe anything you said to me.

When you first started working days you looked great and dressed the part, you are a very attractive lady (I have told you that before), but now you look and dress more like the charlady coming in to scrub the floors.

Your leaving here is a very personal loss for me, I have told you how I feel about you, (still do) and was disappointed when you decided that we couldn’t have the relationship that I wanted. But that’s life, we all make our own choices, and then have to live with them.

As far as anyone is concerned we had an argument about how the bar should be run and you disagreed with me to the point that you had to leave.

If you could please bring anything you have belonging to the bar or me… into the bar on Sunday evening around 9:00 pm, I will have your pay made up, and waiting.

You confuse me Debbi! You are two people. Inside you are a very smart, sharp, intelligent woman with unfortunately a very immature idiot living on the outside.

If you ever change your mind and want to come back here, please call me, we can talk about it calmly.

I finally got a chance to talk to slippers yesterday and I was right. You do not have a friend in good old uncle Buck, his plan for you was to take you up to the camp, feed you all the beer that you wanted and then let you become everybody’s quick fuck. That is how he talks about you. That is your reputation with him and his friends.

Take care Debbi, I still love you and wish you all the luck in the world.

Bruce [Emphasis added]

37On Monday, September 21, 2009, the individual respondent hand delivered the second letter to the applicant’s home. The applicant testified that her father brought the letter into the house and gave it to her. She stated that she became very upset when she read it, and her father then wanted to read it, but she refused to show it to him because she was afraid what he might do after he read it. The letter, which was admitted into evidence, stated:

(…)

#1 Stuff

If you are reading this I have been to your house and picked up the stuff. If I find anything else here I shall get it to you somehow.

#2 Dull Stump. (Derrick)

Last Saturday when I returned to the pub your friend was sitting at the bar with his usual fat, round expressionless face, and I felt that I had to congratulate him.

All I said was, congratulations, I hope you and Debbi will be happy. Debbi has invested a lot in you. Because I have told her in the past, that the next time I caught her fucking around with our customers, I would fire her. I found out about you, so I fired her, but I hope you both will be very happy. What he said was I think… What! Live with her! I have already got the best that ugly cunt can give anybody….

Question. What’s it like sucking someone’s cock as they laugh at you? It’s strange, but Jimmy Beard always said the same thing about you, calling you the ugly skinny cunt, with the chopped up face, and that he wouldn’t fuck you with the dog’s dick. Does that mean that you are blowing him as well? Isn’t love wonderful?

#3 Customers view of you

(…)

They were coming into the bar, not for a drink, but to see what the freak is saying and doing now. Your stupid, ignorant jokes, your come fuck me text messages which you apparently show everybody and think are funny (most of your customers think you are stupid, ignorant and a freak), and how you talk about me. You certainly do not like or respect me in any way.

(…)

Both Miriam and yourself think our customers are your friends. Miriam was the nut bar, you are the freak.

#4 Are you bi-polar or on drugs?

The only explanation I can think of for your behaviour is you have a mental health problem or are on drugs.

#5 Money missing from the bar.

On Friday evening, while I was outside at the B.B.Q. The same people, who think you rip off everybody, were amazed at what you were doing with money from the draws, and the food.

(…)

I have done a quick count of the money from Friday night and there definitely seems to be money short.

If you did take any please send it back and every thing will stop right there, and I shall not have to involve these people any more, or the police.

(…)

You have a very nice daughter Debbi, I hope she never finds out what her mother is really like.

(…)

Bruce [Emphasis added]

38In cross-examination, the individual respondent stated that he delivered this letter to the applicant because he wanted to close things off with her.

39The applicant testified that after she received this letter, the individual respondent called and left a voicemail message for her stating that he would be returning to her house to pick up the things from the bar that she still had in her possession. She stated that she then called the bar and told the individual respondent’s son to tell the individual respondent to stop delivering letters to her and coming to her house, or he would hear from her lawyer. She stated that she also told him that she would have the bar’s things delivered to the bar. She stated that the individual respondent then called back and left six or seven voicemail messages for her, which stated that he was coming to her house to pick up the bar’s things. In response, she stated that she put the bar’s things in a box and left them on her porch.

40In cross-examination, the individual respondent stated that he did not recall if he left any voicemail messages for the applicant. However, he admitted that his son relayed the contents of the applicant’s telephone message to him, including the warning that if he continued delivering letters to her and coming to her house, he would hear from her lawyer. He also admitted that after he received this warning, he went to the applicant’s house and delivered another letter.

41The applicant and the individual respondent both testified that on Tuesday, September 22, 2009, the individual respondent came to the applicant’s house, picked up the box, rang the doorbell several times, waited outside for approximately three to five minutes, left the third letter, and departed. The applicant stated that she and her mother were in the kitchen when the individual respondent was at the door, and that she was scared. The applicant’s mother testified that the applicant was crying and telling her not to answer the door, so she assured her that the individual respondent could not get into the house.

42The applicant subsequently retrieved the third letter. Both the envelope and the letter were admitted into evidence. The individual respondent wrote the following on the envelope: “There you are Debbi. I get the last word. Please read this and throw it away. Do not respond.” The letter stated:

(…)

You are going to get a lawyer. O.k., get a good one. All they will tell you is there is no slander, I am only telling you what other people are saying about you. There is no libel. No one knows the contents of these letters but you and me. Unless you have shown them to anyone else, and I don’t think you are that stupid. And there are no threats. And they will charge you lots of money, and take me to court. Which is fine. Once you charge me with something, I can respond, and I will cut your legs off. So please, think carefully, before you act.

(…)

When I first met you Debbi, I was very attracted to you and was stupid enough to ask you if we have any kind of relationship. You were smart enough to say no. I am far too old for you. I thought I could just get on with it. But I was wrong. I could not work with you here, knowing you were with someone else. Anger and jealousy are terrible things. So what has happened is for the best.

(…)

I am amazed that you would throw away a job that you appeared to like for a quick fuck with a dull stump like Derrick, life’s strange.

(…)

Bruce Dorman [Emphasis added]

43The individual respondent testified that he now regrets writing, “I will cut your legs off.” He stated that what meant to say was that if she was going make accusations against him in a law suit, he was going to “cut her off at the legs” by defending himself. In cross-examination, when asked what he was going to defend himself against, he stated that he was going to defend himself against the accusations that the applicant would bring against him. When asked whether he was concerned that she was going to bring allegations of sexual harassment against him or allegations against him based on what he had wrote in the letters to her, he denied that he had any particular concerns.

44In cross-examination, when asked why he delivered the three letters in person to the applicant’s house rather than mailing them, he stated that it was more convenient. When pressed as to how it was more convenient, he stated that he was driving by her house. When asked why he rang her doorbell several times and waited outside her house for several minutes during his third visit, he stated that he wanted to hand the letter to the applicant rather than put it in her mailbox.

45The applicant testified that when she was employed at the Rover’s Rest, she also worked one night per week at another bar, and continued working there after her employment ended at the Rover’s Rest. However, she stated that in October 2009, when she was working in the other bar alone, the individual respondent came in with a female friend. She stated that she refused to serve him, and that he left after about half an hour to 45 minutes. She stated that she was scared, and at the end of the evening, she had a customer stay with her until she locked up the bar and got into her car. She also stated she stopped doing shifts at the bar because she was afraid that the individual respondent would continue showing up.

46In his testimony, the individual respondent admitted that he met a female friend at a bar where the applicant was working, that the applicant refused to serve him, and that he stayed there for about half an hour. In cross-examination, he stated that he had no obligation to leave the bar because it was a public space and he had arranged to meet his friend there to discuss doing work on her basement.

47The applicant and the individual respondent both testified that at the end of October 2009, the individual respondent hand delivered a Halloween card, a letter, and some of the applicant’s possessions that he had found in the bar, to the applicant’s house. The applicant testified that the card was also addressed to her daughter and had some candy for her, which she found creepy, so she threw them away. The individual respondent testified that he does not recall if he included candy. The letter, which was admitted into evidence, stated that he had ran into Uncle Buck, who had asked about her, and that he felt like hitting him. The letter also stated that he wanted to see her again to see if he could understand what people were telling him about her.

48The individual respondent testified that after he terminated the applicant’s employment, she came back twice to the Rover’s Rest to play darts. In her reply evidence, the applicant admitted that she went back to the Rover’s Rest once, but denied that she went there twice. She stated that after the individual respondent came to the other bar where she doing a shift, she told her friend, Derrick, what had happened, and he told her that the best way to deal with her fear was to go with him to the Rover’s Rest, show the individual respondent that he could not intimidate her, and move on. She stated that she agreed and they went to the Rover’s Rest together for one drink and then left.

49The applicant and the individual respondent both testified that in December 2009, the individual respondent mailed a Christmas card to the applicant and her daughter. The card, which was admitted into evidence, invited the applicant to a staff Christmas party at the Rover’s Rest, and stated: “I would like to talk to you and say sorry.” The applicant did not attend the party. This was the last correspondence that the individual respondent delivered to the applicant prior to the written exchanges that occurred as part of the process before this Tribunal.

50The applicant testified that the sexual harassment and advances, the termination of her employment, and, particularly, the letters and visits to her home, had a significant, negative impact her ability to socialize, her sense of security, her emotional and mental health, and her ability to find a new job.

51The applicant testified that in the fall of 2009, she avoided going out and socializing because she was worried that the individual respondent had repeated the comments about her in his letters to other people, and because she was afraid that she would run into him. She also stated that she never went out after dark without her mother because she was afraid that she would run into the individual respondent and that he would harm her. She stated that his threat to cut her legs off had particularly scared her. The applicant’s mother testified that whenever she accompanied the applicant outside the house during that time period, the applicant would constantly be looking behind her to see if the individual respondent was following her.

52The applicant also testified that in the fall of 2009, she felt extremely depressed, had difficulty sleeping at night, spent much of the day in bed, and lost 10 pounds of weight. The applicant’s mother also testified that the applicant was depressed and spent a lot of time in bed during this time period. The applicant stated that she went and saw her family doctor, who prescribed her antidepressants and sleeping pills. She stated that she had taken antidepressants 20 years ago, but not in the recent past, and had never taken sleeping pills before. She stated that she took the antidepressants until the spring of 2010, and the sleeping pills for two years.

53The applicant testified that the fact that she was depressed and spending a lot of time in bed damaged her relationship with her teenage daughter. She stated that during this time period they rarely socialized or went out together because of her depressed state and lack of money. She stated that her daughter would yell at her to get her out of bed, and ask her what kind of mother sleeps all day. The applicant’s mother also testified that her granddaughter often shouted at the applicant during this time period because they were not socializing or going out together. The applicant stated that her relationship with her daughter improved after her depression lifted, but to this day, her daughter has some lingering resentment.

54The applicant testified that she felt so depressed and tired that she was unable to look for a new job until the antidepressants began to work in December 2009. She stated that she found a new job at another bar in mid-December 2009. The Tribunal admitted into evidence a T4 (Statement of Remuneration Paid), which indicated that her employment income at her new job was $514.85 in 2009.

55The Tribunal also admitted into evidence a Statement of Employment that the applicant received from the Rover’s Rest, which indicated that between February 13 and September 18, 2009, the applicant was paid $7 per hour and worked a total of 608.25 hours. The applicant testified that she also received an average of $250 in tips per week from customers.

56In cross-examination, the individual respondent stated that he sold the Rover’s Rest, and that it no longer exists as a corporate entity.

ANALYSIS

Applicable Law and Issues

Human Rights Code

57The Application relates to ss. 5, 7, 8, 9, and 10 of the Code, which provide:

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

(…)

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

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

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

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

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

(…)

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

(…)

Onus

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

Credibility and Reliability

59In assessing credibility, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) 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. [Emphasis added]

60Accordingly, I have not considered each witness’s evidence in isolation, but rather, in the context of the totality of the evidence. See F.H., supra at para. 58.

61I am also mindful of the Ontario Court of Appeal’s comments on reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205:

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.

62I found the applicant’s testimony to be both credible and reliable. Her testimony was clear, forthright, detailed, internally consistent, and plausible. I was particularly impressed that, although the individual respondent attacked her character throughout this process, when she testified she focused on the facts of what happened rather than attacking the individual respondent’s character. I was also impressed that when I asked her about alleged conduct that had the potential to undermine aspects of her case (for example, visiting the Rover’s Rest after the individual respondent allegedly threatened her), rather than denying her conduct or becoming evasive, she admitted her conduct and provided a detailed and thoughtful explanation. Overall, I found the applicant’s testimony to be in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

63By contrast, I did not find much of the individual respondent’s testimony to be credible or reliable. His testimony was often vague, evasive, lacking in detail, internally inconsistent, and/or implausible. I was unimpressed that during his testimony, he spent a great deal of time attacking the applicant as a woman of bad character, often by relaying alleged statements made by third parties, whom he could have, but did not, call as witnesses. I was even more unimpressed by the fact that in his testimony he tried to lie about what he had written in his letters to the applicant after he terminated her employment. His willingness to lie tainted his entire testimony.

64Accordingly, where there was a conflict between the applicant’s testimony and the individual respondent’s testimony, I found the applicant’s testimony to be more credible and reliable.

Issues

65In this case, the main issues that I am required to determine are as follows:

1. Did the individual respondent subject the applicant to sexual harassment and advances in the workplace, and poison her work environment?

2. Did the individual respondent subject the applicant to discrimination because of her sex and a reprisal for rejecting his sexual advances when he terminated her employment?

3. Did the individual respondent subject the applicant to discrimination and harassment with respect to employment because of her sex, and reprisals for rejecting his sexual advances, by delivering and sending letters to her and coming to her house?

4. Did the respondent subject the applicant to a threat of reprisal for claiming her rights under the Code when he threatened to cut her legs off?

Did the individual respondent subject the applicant to sexual harassment and advances in the workplace, and poison her work environment?

66I will start by addressing the applicant’s allegation of sexual harassment. In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 at para. 56, the Supreme Court of Canada broadly defined sexual harassment in the workplace as:

(…) unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

67More specifically, in Bell v. Ladas (1980), 1980 CanLII 3899 (ON HRT), 1 C.H.R.R. D/155 (Ont. Bd. Inq.), which was cited with approval by the Supreme Court, the Ontario Board of Inquiry stated at para. 1389 that sexual harassment runs

(…) the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.

68In order to establish a case of sexual harassment, the onus is on the applicant to prove, on a balance of probabilities, that (1) the individual respondent was her employer, her employer’s agent, or another employee; (2) the individual respondent harassed her by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome; (3) the individual respondent harassed her in the workplace; and (4) the individual respondent harassed her because of her sex. See ss. 7(2) and 10(1) of the Code.

69With respect to the second part of the test, there is an objective standard to determine whether the individual respondent ought reasonably to have known that his impugned behaviour towards the applicant was unwelcome. The standard is what the perception of a “reasonable person” would be, considering the perspective of both a reasonable person in the applicant’s position, and a reasonable person in the individual respondent’s position. See Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43-48. Moreover, a reasonable person in this context would, in my view, be a person who does not rely on gender stereotypes, and understands what sexual harassment is.

70With respect to the fourth part of the test, the very nature of the sexual harassment can be sufficient to establish that the sex of the applicant was a factor in the adverse treatment. See Friedmann v. MacGarvie, 2012 BCCA 445 at paras. 31-32.

71In my view, the applicant proved, on a balance of probabilities, that the individual respondent subjected her to sexual harassment in the workplace. With respect to the first part of the test, I find that the individual respondent was the applicant’s employer. It is undisputed that the individual respondent was the owner and manager of the Rover’s Rest when the applicant worked there.

72With respect to the second part of the test, I find that the individual respondent harassed the applicant by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome. The applicant testified that the individual respondent engaged in the following course of comment and conduct towards her:

1. In the spring or early summer of 2009, the individual respondent began asking her out, including asking her to go to a movie with him twice, to go to dinner with him once, and to accompany him to a cottage once.

2. The individual respondent also began to regularly invade her personal space by standing close to her, brushing up against her when he passed by her, putting both of his hands on her waist when he passed behind her, leaning into her body when he reached for ice near the cash register, and putting his arms around her and hugging her.

3. The individual respondent also frequently patted her buttocks with his hand, made noises when she bent over, told that she had a “nice ass” or used similar words, and said that he was going to bend her over the pool table and smack her bare ass.

4. On one occasion, when the individual respondent came back to the bar from a golf tournament, he called her into his office, told her that he had a hard time concentrating when he was playing golf because all he could think of was her ass, and gave her chocolate and roses.

5. The individual respondent watched and listened in on her conversations with male customers, and then later, in an angry and agitated manner, would demand to know what the conversations were about, wrongfully accuse her of sleeping with customers, and tell her that she should not behave like a “whore”, “slut” and/or “slag”.

6. The individual respondent asked her if one male customer was paying her for sex, wrongfully accused her of planning to sleep with a second male customer (Uncle Buck), and wrongfully accused her of “fucking” a third male customer (Derrick).

73The individual respondent either outright denied that the above incidents occurred (asking the applicant out, invading her personal space, touching her body, hugging her, patting her buttocks, and making comments about her buttocks), or admitted that certain incidents occurred, but denied that they occurred the way that the applicant said they did (saying that he was going to bend the applicant over the pool table and smack her bare ass, giving her chocolate and roses, and monitoring and commenting on her interactions with male customers).

74I find that all the above incidents occurred, and that they occurred in the manner in which the applicant said that they occurred. The applicant provided clear, forthright, detailed, and internally consistent testimony about these incidents, which was not shaken in cross-examination. Furthermore, her testimony about these incidents was corroborated by the events that happened after the termination of her employment. The fact that the individual respondent sent her letters which not only stated that he had wanted to have a romantic relationship with her and still loved her, but which also contained vulgar, misogynist comments about her (for example, “ugly cunt”), corroborated her allegation that the individual respondent asked her out and made inappropriate comments of a sexual nature to her in the workplace. The fact that the individual respondent repeatedly came uninvited to her home, including after he was warned by her not to do so, corroborated her allegation that he repeatedly pursued her romantically and sexually in the workplace.

75By contrast, the individual respondent’s testimony about the above incidents lacked credibility. I noticed that when the individual respondent was testifying and being cross-examined, not infrequently, he tried to avoid directly addressing the applicant’s factual allegations by attacking her as a woman of bad character based on either alleged statements made by her (for example, her sister had called her “dirty”), or, more often, alleged statements made by third parties (for example, she had drug problems and was a lesbian), whom he could have, but did not, call as witnesses. I found his testimony in this respect to be evasive.

76I also found some of his testimony to be implausible. For example, he admitted that he had given the applicant chocolate and roses, but denied that his act was a romantic or sexual advance. Even if it is true that he also gave chocolate and roses to other women in the bar, in my view, it is a notorious and undisputed fact that when a man gives a woman both chocolate and roses in mainstream society, the act has romantic connotations.

77What was most damaging to the individual respondent’s credibility, though, was the fact that he lied to the Tribunal when he testified that he never had a romantic interest in or loved the applicant. The letters that he delivered to her after the end of her employment, which he admits that he wrote, and his Response to the Application, clearly indicated that he wanted to have a romantic relationship with her and was in love with her. His attempt to explain away the statements that he made in those documents was nonsensical and absurd. The fact that the individual respondent blatantly lied about these key facts substantially undermined the credibility of his testimony with respect to the above incidents.

78For these reasons, I preferred the applicant’s version of events over the respondent’s version of events and his denials.

79I also find that the individual respondent’s comments to, and conduct towards, the applicant in the workplace amounted to harassment. In my view, the comments and conduct were vexatious and known or ought reasonably to have been known to be unwelcome. I accept the applicant’s testimony, which was not shaken in cross-examination, that she explicitly declined multiple requests to go out on dates with him; that she reacted to his romantic and sexual advances by tensing up her body, refusing to make eye contact with him, and trying to avoid him and not be in situations where he could touch her or make comments to her; that he was angry that she did not bring the roses that he gave her home; that she explicitly told him that she did not appreciate him saying that that he was going to bend her over the pool table and smack her bare ass, and that he should stop saying it; that he continued saying that he was going to smack her bare ass; and that he then began monitoring her conversations with male customers, and angrily confronting her and wrongfully accusing her of sleeping with them.

80The individual respondent’s comments and conduct clearly distressed the applicant. Furthermore, in these circumstances, a reasonable person would have known that his romantic and sexual advances and his sexual comments were unwelcome, yet the individual respondent persisted with them.

81With respect to the third and fourth parts of the test to establish sexual harassment, I find that the individual respondent harassed the applicant in the workplace and that the harassment occurred because of her sex. I accept the applicant’s testimony, which was not shaken in cross-examination, that the incidents of harassment occurred in the bar. I also find that the nature of the individual respondent’s sexual harassment of the applicant was directly related to the fact that she is a woman. The individual respondent made repeated romantic and sexual advances towards the applicant and treated her as a sex object in the workplace, which, in effect, was a devaluation of her status as a worker because she is a woman.

82In view of the fact that the individual respondent’s comments to, and conduct towards, the applicant included romantic and sexual advances towards her, and the fact he was the owner and manager of the bar, I also find that his comments and conduct amounted to sexual advances made by a person in a position to confer, grant or deny a benefit or advancement. See s. 7(3)(a) of the Code.

83Furthermore, I find that the individual respondent’s comments to, and conduct towards, the applicant poisoned her work environment. It is well-settled law that the prohibition against discrimination in s. 5(1) of the Code affords employees the right to be free from a poisoned work environment in relation to Code-protected grounds. If sexually charged comments and conduct contaminate the work environment, then such circumstances can constitute a discriminatory term or condition of employment contrary to both ss. 5(1) and 7(2) of the Code. See Smith v. Menzies Chrysler, 2009 HRTO 1936 at para. 151. I accept that the individual respondent’s comments to, and conduct towards, the applicant, including repeatedly making romantic and sexual advances, repeatedly making comments about her buttocks, monitoring her interactions with male customers, wrongfully accusing her of sleeping with those customers, and telling her that she should not behave like a “whore”, “slut” and/or “slag”, poisoned her work environment.

84Accordingly, the applicant’s allegation that the individual respondent subjected her to sexual harassment and advances in the workplace, and poisoned her work environment is upheld.

Did the individual respondent subject the applicant to discrimination because of her sex and a reprisal for rejecting his sexual advances when he terminated her employment?

85I will now address the applicant’s allegation that the termination of her employment was discriminatory and a reprisal. In order to establish a case of discrimination, the applicant must prove, on a balance of probabilities, that she received adverse treatment, and her sex was a factor in the adverse treatment. See Shaw v. Phipps, 2012 ONCA 155 at para. 34.

86In order to establish a case of reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

See Noble v. York University, 2010 HRTO 878 at para. 33.

87The applicant testified that after she declined the individual respondent’s requests to go out on dates with him, started avoiding him because of his physical advances towards her, and left the roses that he gave her on the bar rather than taking them home, he began monitoring her interactions with male customers and wrongfully accusing her of sleeping with them. She stated that his behaviour culminated in a confrontation where he told her, for the first time, that the bar had a rule prohibiting staff from dating customers and asked her if she was seeing a male customer (Derrick). She stated that when she told him that she went out for drinks with Derrick after work, but was not seeing him, the individual respondent told her that he could not employ her while she was “fucking” his customers, and terminated her employment.

88The individual respondent testified that to ensure that the bar had a good reputation, he instructed staff not to date customers. He stated that the applicant ignored his instruction because he heard from another staff person that the applicant had identified Derrick as hers. However, in cross-examination, although he admitted that he believed that she was sleeping with Derrick, he denied that he terminated her employment for that reason. Rather, he stated that he terminated her employment because she was damaging the reputation of his bar. Specifically, he stated that customers told him that she made crude jokes about giving blow jobs and they saw her leaving the bar with male customers, and that he overhead Uncle Buck say, in reference to the trip to his hunting camp, “Debbie was great last year and she will be great this year.”

89I find that the individual respondent terminated the applicant’s employment because she rejected his romantic and sexual advances and began avoiding him, and he became jealous when he saw her interacting with male customers and wrongfully believed that she was sleeping with them, particularly Derrick. I also find that when the individual respondent terminated her employment, he told her that the bar had a rule prohibiting staff from dating customers, but that he had never mentioned this rule to her before, and that there was, in fact, no such rule.

90The applicant provided clear, forthright, detailed, and internally consistent testimony about these incidents, which was not shaken in cross-examination. Furthermore, her testimony about these incidents was corroborated by the events that happened after the termination of her employment. The third post-termination letter that the individual respondent delivered to her is particularly revealing because it clearly states that he had wanted to have a romantic relationship, that he was angry and jealous and could not work with her knowing she was with someone else, and that he terminated her employment because he believed that she was having sex with Derrick. The individual respondent’s repeated, uninvited visits to her home, even after she warned him to stop, also corroborated her testimony that his behaviour towards her leading up to the termination of her employment was obsessive and irrational.

91By contrast, the individual respondent’s testimony about the above incidents lacked credibility. Again, he mainly attacked the applicant as a woman of bad character based on alleged statements made by third parties, whom he could have, but did not, call as witnesses. He also did not present any evidence to support his testimony that the bar had a rule prohibiting staff from dating customers, and I find it difficult to believe that he was a stickler for rules of this kind, given that there was apparently no similar rule prohibiting the owner/manager from dating employees. I also find it difficult to believe that he would be genuinely concerned that the reputation of the bar would be adversely affected by crude sexual jokes given that he unapologetically admitted that he joked in the bar about smacking the applicant’s bare ass. The individual respondent also lied to the Tribunal when he denied that he terminated the applicant’s employment because he believed that she was sleeping with Derrick. His willingness to blatantly lie about this key fact substantially undermined the credibility of his testimony with respect to the termination of the applicant’s employment.

92In view of the fact that the individual respondent, who was the male owner and manager of the bar, made romantic and sexual advances towards the applicant, who was a female employee, which were rejected, and that he responded to the rejection by monitoring and attempting to control her interactions with other men, and then terminated her employment because he wrongfully believed that she was defying his order not to sleep with other men, I find that the termination was based on her sex, and was also an intentional retaliation against her for rejecting his sexual advances.

93Accordingly, the applicant’s allegation that the individual respondent subjected her to discrimination because of her sex and a reprisal for rejecting his sexual advances when he terminated her employment is upheld.

Did the individual respondent subject the applicant to discrimination and harassment with respect to employment because of her sex, and reprisals for rejecting his sexual advances, by delivering and sending letters to her and coming to her house?

94I will turn next to the applicant’s allegation that the individual respondent discriminated against and harassed her because of her sex and reprised against her after he terminated her employment. The first issue to determine is whether the individual respondent’s comments to, and conduct towards, the applicant after he terminated her employment fall within the jurisdiction of the Tribunal. In my view, they do.

95Section 5 of the Code provides that every person has a right to equal treatment “with respect to” employment without discrimination because of sex and other grounds.

96The Supreme Court of Canada has established that human rights legislation is to receive a wide and liberal construction that advances its objectives, but that courts and tribunals cannot ignore limiting words in the legislation, or otherwise circumvent the intention of the legislature. In University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 S.C.R. 353, the Court stated at pp. 370-71:

(…) this Court has had many occasions to comment on the privileged status of human rights legislation. In Ontario Human Rights Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 547) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary -- and it is for the courts to seek out its purpose and give it effect." This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, "must be so interpreted as to advance the broad policy considerations underlying it". These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.

97Furthermore, in Landau v. Ontario (Finance), 2011 HRTO 1521, this Tribunal stated at para. 12:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

98In Chappell v. Securitas Canada Limited, 2012 HRTO 874, the Tribunal addressed the scope of s. 5 of the Code in accordance with these principles, and stated at para. 21:

Section 5 of the Code… prohibits discrimination “with respect to employment” and there is no language limiting the prohibition to employment relationships. The Tribunal has considered the phrase “with respect to” in the context of the prohibition of discrimination “with respect to services” in section 1 of the Code. See: Contini v. Rainbow District School Board, 2011 HRTO 1340 and Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056. In those cases, the Tribunal noted that the Supreme Court of Canada, in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at paragraph 26, and Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at page 39, interpreted the similar term “in respect of” and found that it is a broad expression intended to convey a connection between two related subject matters. Given the expansive, liberal and purposive approach to interpreting the Code the Tribunal found that the words “with respect to” should also be broadly interpreted. I agree with this analysis, which in my view applies equally to section 5. Accordingly, I find that the protections afforded by section 5 are not limited solely to incidents arising within employment relationships.

99Furthermore, the Tribunal’s case law explicitly recognizes that s. 5 of the Code can apply to incidents that occur after a person is terminated or resigns from employment. For example, in Romano v. 1577118 Ontario Inc., 2008 HRTO 9, the Tribunal stated at para. 68:

The explicit remark was clearly demeaning and attacked the dignity and self-respect of Ms. Romano based on her gender. In addition, it detrimentally affected Ms. Romano “with respect to” her employment, within the meaning of section 5. While Ms. Romano had resigned her employment at the time the remark was made, I find that the Code applies to the situation described, namely attending at the restaurant where Ms. Romano had been employed for the purpose of picking up her final pay and obtaining her record of employment.

100In the case at hand, given that the individual respondent’s post-termination of employment letters to the applicant and his visits to her home were all employment-related and proximate to the termination, I find that they were “with respect to” employment, and therefore fall within the jurisdiction of the Tribunal.

101The next issue to decide is whether the individual respondent’s letters to the applicant and his visits to her house constituted discrimination and harassment because of sex and reprisals for rejecting his sexual advances. I find that they did.

102I find that the individual respondent’s letters to the applicant were intended to hurt, degrade and punish her because she had rejected his romantic and sexual advances, and he believed that she was sleeping with other men. The letters contained a barrage of sexist, misogynist and sexual comments, which criticized and attacked the way she dressed and looked, and depicted her as, and criticized her for being, sexually promiscuous and a bad mother. For example, the letters made the following comments:

• “When you first started working days you looked great and dressed the part, you are a very attractive lady (I have told you that before), but now you look and dress more like the charlady coming in to scrub the floors.”

• “[Uncle Buck’s] plan for you was to take you up to the camp, feed you all the beer that you wanted and then let you become everybody’s quick fuck. That is how he talks about you. That is your reputation with him and his friends.”

• “What [Derrick] said was I think… What! Live with her! I have already got the best that ugly cunt can give anybody…. Question. What’s it like sucking someone’s cock as they laugh at you?”

• “Jimmy Beard always said the same thing about you, calling you the ugly skinny cunt, with the chopped up face, and that he wouldn’t fuck you with the dog’s dick. Does that mean that you are blowing him as well?”

• “Miriam was the nut bar, you are the freak.”

• “You have a very nice daughter Debbi, I hope she never finds out what her mother is really like.”

103Although most (but not all) of the comments were based on alleged statements made by third parties, whom the individual respondent did not call as witnesses, in my view, whether or not those hearsay comments were actually made is immaterial because it was obvious that the individual respondent was relaying them to the applicant to try to hurt, degrade and punish her because she had rejected his romantic and sexual advances, and he believed that she was sleeping with other men.

104I also find that the individual respondent’s repeated, uninvited visits to the applicant’s house were intended to intimidate her because she had rejected his romantic and sexual advances, and he believed that she was sleeping with other men. I accept the applicant’s testimony, which was not shaken in cross-examination and which was corroborated by her mother, that she was frightened by the individual respondent’s visits to her home. I do not accept the individual respondent’s testimony that he dropped off the letters in person because he was driving by and it was more convenient than mailing them. It is not a standard practice for employers to personally hand-deliver letters to recently terminated employees, and I find it hard to believe that it was more convenient than putting a stamp on the letters and dropping them in a mailbox. Furthermore, he admitted that during his third visit, when he was delivering a letter in which he threatened to cut her legs off, he rang her doorbell several times and waited outside her house for several minutes because he wanted to hand the letter to her rather than put it in her mailbox. In my view, this demonstrates that he was trying to intimidate her.

105In view of the fact that the individual respondent delivered several letters to the applicant with content that was intended to degrade her as a woman and punish her because she had rejected his romantic and sexual advances, and he believed that she was sleeping with other men; the fact that he made several uninvited visits to her home with the intention of intimidating her because she had rejected his romantic and sexual advances, and he believed that she was sleeping with other men; and the fact that he continued to deliver letters to her and visit her home after she warned him not to do so, I find that his comments to, and conduct towards, the applicant constituted both discrimination and harassment because of sex and reprisals for rejecting his sexual advances.

106According, the applicant’s allegation that, by delivering and sending letters to her and coming to her house, the individual respondent subjected her to discrimination and harassment with respect to employment because of her sex, and reprisals for rejecting his sexual advances, is upheld.

Did the respondent subject the applicant to a threat of reprisal for claiming her rights under the Code when he threatened to cut her legs off?

107I turn finally to the applicant’s allegation that the individual respondent’s threat to cut her legs off was a threat of reprisal for claiming her rights under the Code. The first issue to determine is whether the applicant claimed her rights under the Code. I find that she did when she warned the individual respondent via his son that if he did not stop delivering letters to her and coming to her house, he would hear from her lawyer. She clearly viewed his conduct as discriminatory, and did, in fact, later file an Application under the Code with respect to his conduct.

108The second issue to determine is whether the individual respondent’s threat to cut the applicant’s legs off was a threat of reprisal. I find that it was. It is undisputed that, in response to the applicant’s warning, the individual respondent went to her house and delivered another letter, which stated, in part:

You are going to get a lawyer. O.k., get a good one. All they will tell you is there is no slander, I am only telling you what other people are saying about you. There is no libel. No one knows the contents of these letters but you and me. Unless you have shown them to anyone else, and I don’t think you are that stupid. And there are no threats. And they will charge you lots of money, and take me to court. Which is fine. Once you charge me with something, I can respond, and I will cut your legs off. So please, think carefully, before you act.

109The applicant testified that the individual respondent’s threat to cut her legs off particularly scared her. She clearly viewed it as a threat of physical violence. The individual respondent, on the other hand, testified that what he meant to say was that if she was going to make accusations against him in a law suit, he was going to “cut her off at the legs” by defending himself.

110I accept that the individual respondent was using a metaphor, but I do not accept that he did not intend to threaten the applicant with physical violence. I am not aware of the phrase, “cut off at the legs”, but there is a phrase, “cut off at the knees”, which essentially means to stop someone’s ability to do something. With that in mind, and reading the phrase within the context of the entire paragraph, I accept that the individual respondent was using a metaphor and was not literally threatening to cut the applicant’s legs off. However, at the same time, the individual did not state, “I can respond, and I will stop you”; instead, he chose a metaphor with a threat of physical violence. In view of his accompanying intimidating behaviour towards the applicant (ignoring her warning, going to her house to deliver the letter, ringing her doorbell several times, and waiting outside her house for several minutes), I have no doubt that he chose this metaphor because it had an implicit threat of physical violence and he wanted to intimidate her.

111Accordingly, the applicant’s allegation that the respondent subjected her to a threat of reprisal for claiming her rights under the Code when he threatened to cut her legs off is upheld.

LIABILITY

112Section 46.3(1) of the Code provides that for the purposes of the Code, with certain exceptions, any act or thing done or omitted to be done in the course of one’s employment by an officer, official, employee or agent of a corporation shall be deemed to be an act or thing done or omitted to be done by the corporation. The exceptions include harassment because of sex, sexual advances, and reprisals for rejecting sexual advances under s. 7 of the Code. However, the Ontario Divisional Court has held that if the individual responsible for the acts under s. 7 of the Code is a directing mind of the corporation, then the corporation can also be held liable for the individual’s acts. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 33.

113I find, pursuant to s. 46.3(1) of the Code, that the individual respondent and the Rover’s Rest are jointly and severally liable for subjecting the applicant to a poisoned work environment, discrimination because of her sex, and a threat of reprisal for claiming her rights under the Code. However, I also find that the individual respondent and the Rover’s Rest are jointly and severally liable for subjecting the applicant to harassment because of her sex, sexual advances, and reprisals for rejecting the individual respondent’s sexual advances because, as the owner and manager, the individual respondent was the directing mind of the Rover’s Rest when the applicant worked there.

REMEDY

Applicable Law and Issues

114The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:

(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:

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

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

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

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

115Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation or restitution, and whether the Tribunal should order the respondents to do anything further to promote compliance with the Code.

Monetary Compensation

Injury to Dignity, Feelings and Self-Respect

116The applicant seeks an award of $60,000 compensation for injury to dignity, feelings and self-respect.

117An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008), 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Div. Ct.) at para. 152.

118The Divisional Court has also recognized that 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 are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., supra at para. 153.

119In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 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 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.

120I find that, overall, the individual respondent’s Code-related mistreatment of the applicant was serious. The individual respondent subjected the applicant to sexual harassment and advances, a poisoned work environment, discrimination and harassment because of her sex, and reprisals, by, among other things, repeatedly asking her out, invading her personal space, touching her body, hugging her, patting her buttocks, making comments about her buttocks, stating that he was going smack her bare ass, giving her chocolate and roses, monitoring her interactions with male customers, wrongfully accusing her of sleeping with those customers, terminating her employment, delivering sexist and misogynist letters to her, intimidating her by making repeated, uninvited visits to her house, and making an implicit threat of physical violence.

121I also accept the applicant’s testimony, which was not shaken in cross-examination and much of which was corroborated by her mother, that the individual respondent’s comments and conduct had a significant impact on her, including depression, sleeping problems, lethargy, weight loss, damage to her relationship with her teenage daughter, and a fear of going outside alone, especially after dark. I also find that, as a single mother, the applicant was vulnerable.

122In his closing submissions, the individual respondent suggested that the applicant could not have been afraid of him because she came back to the Rover’s Rest twice after her employment ended. I disagree. I accept the applicant’s testimony that she only went back there once with Derrick, and that the purpose of her visit was to deal with her fear by showing the individual respondent that he could not intimidate her, and then moving on.

123In his closing submissions, the individual respondent also suggested that the applicant’s claim of monetary compensation for injury to dignity, feelings and self-respect was not substantiated because she did not provide supporting medical evidence. I disagree that the lack of supporting medical documentation means that the applicant’s claim for monetary compensation for injury to dignity, feelings and self-respect was not substantiated, but in determining quantum, I have taken into account that she has not presented evidence that she was clinically diagnosed with depression or a sleeping or weight disorder.

124Recent Tribunal decisions that have considered sexual harassment and related issues in the context of employment have generally made awards ranging from $12,000 to $50,000. See, for example, Chuvalo v. Toronto Police Services Board, 2010 HRTO 2037 ($12,000); Newton v. Toronto (City), 2010 HRTO 1023 ($15,000); S.S. v. Taylor, 2012 HRTO 1839 ($15,000); Chard v. Newton, 2007 HRTO 36 ($16,000); Payette v. Alarm Guard Security Service, 2011 HRTO 109 ($18,000); G.G. v. […] Ontario Limited, 2012 HRTO 1197 ($18,000); Iu v. Markham Marble, 2012 HRTO 65 ($20,000); Harriott v. National Money Mart, 2010 HRTO 353 ($22,500); Hughes v. 1308581 Ontario, 2009 HRTO 341 ($25,000); Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824 ($25,000); Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 ($27,000); Sanford v. Koop, 2005 HRTO 53 ($35,000); S.H. v. M[...] Painting, 2009 HRTO 595 ($40,000); M.K. v. [...] Ontario, 2011 HRTO 705 ($40,000); and Smith v. Menzies Chrysler, 2009 HRTO 1936 ($50,000).

125In the cases on the low end of the spectrum, the Tribunal generally found that there were few incidents, 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 spectrum, the Tribunal generally found that there were multiple incidents, the incidents were of a serious nature, there was a serious physical assault, and/or there was a reprisal or a loss of employment related to the incidents.

126In my view, the case at hand falls in the upper middle end of the spectrum. On the one hand, the incidents did not occur over a prolonged period of time and the physical touching was of a more subtle nature. On the other hand, there were multiple incidents, several of the incidents were of a serious nature, and there was a loss of employment and reprisals.

127The incidents that occurred during the applicant’s term of employment and the termination of her employment were typical of many sexual harassment cases, and if that was all that had happened, the case would have fallen in the middle of the spectrum. What moved this case beyond the middle, in my view, were the individual respondent’s subsequent stalker-like behaviour and its impact on the applicant. His behaviour not only had an impact on her mental and physical health, it also restricted her freedom of movement. I was particularly struck that she became so fearful (rationally so, in my view) that she was unable to go out at night without another person accompanying her.

128I find after considering the overall seriousness of the individual respondent’s Code-related mistreatment of the applicant, the applicant’s individual circumstances, and the cases cited above, that $35,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.

Lost Income

129The applicant seeks an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.), and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

130The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. The respondent, however, has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265.

131In his closing submissions, the individual respondent stated that the applicant’s claim for lost income should be denied because she did not provide any medical documentation to support her testimony that she was unable to look for work until December 2009. I disagree. The applicant provided clear, forthright and detailed testimony, much of which was corroborated by her mother, that she was suffering from depression, sleeping problems and lethargy, which rendered her incapable of looking for a new job until the antidepressants that her doctor prescribed her began to work in December 2009. The individual respondent did not undermine the credibility of her evidence on this point through cross-examination.

132The applicant submitted documentary evidence that the Rover’s Rest employed her for 31 weeks (February 13 to September 18, 2009), that she worked a total of 608.25 hours, and that she was paid $7 per hour. She also testified that she received an average of $250 in tips per week from customers. The individual respondent did not challenge the accuracy of these numbers. She further testified that she found a new job at another bar in mid-December 2009, and submitted documentary evidence that indicated that her employment income at her new job was $514.85 in 2009

133In her closing submissions, the applicant requested 16 weeks of lost income, which, in my view, is incorrect because she testified that she found a new job in mid-December 2009, and the documentary evidence that she submitted appears to indicate that her total wage earnings per week in the last two week of December 2009 were comparable to her total wage earnings per week at the Rover’s Rest. In my view, the applicant is entitled to 12.57 weeks of lost income (September 18 to December 15, 2009).

134As such, I find that the applicant worked an average of 19.62 hours per week at the Rover’s Rest (608.25 hours/31 weeks), had lost wages of $1,726.36 (12.57 weeks x 19.62 hours per week x $7 per hour), and had lost tips of $3,142.50 (12.57 weeks x $250 per week).

135I therefore find that $4,868.86 is an appropriate award to the applicant for lost income.

Interest

136Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the date the cause of action arose to the date of the order. Accordingly, I find that the respondents should pay the applicant pre-judgment interest on her lost income from September 18, 2009 to the date of this Decision.

137Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.

138The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp

Compliance Remedies

139The individual respondent testified that he sold the Rover’s Rest, and that it no longer exists as a corporate entity. However, I am concerned that the individual respondent may purchase and operate a new business where he will supervise female employees. I therefore find it appropriate that the individual respondent retain a consultant with expertise in sexual harassment and gender discrimination to provide training to him on his obligations under the Code with respect to these issues.

140The individual respondent shall provide the applicant with a letter from the consultant confirming that he has completed the training.

ORDERS

141Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondents shall pay the applicant $35,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.

2. Within 30 days of the date of this Decision, the respondents shall pay the applicant $4,868.86 as monetary compensation for lost income. Pre-judgment interest is payable on her lost income from September 18, 2009 to the date of this Decision.

3. Post-judgment interest is payable on any amount of the awards of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.

4. The respondents are jointly and severally liable for the awards of monetary compensation.

5. Within 60 days of the date of this Decision, the individual respondent shall retain a consultant with expertise in sexual harassment and gender discrimination to provide training to him on his obligations under the Code with respect to these issues.

6. Within 75 days of the date of this Decision, the individual respondent shall provide the applicant with a letter from the consultant confirming that he has completed the training.